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Reutter, E. Edmund, Jr.Legal Aspects of Control of Student Activities hyPublic School Officials.National Organization on Legal Problems ofEducation, Topeka, Kans.; Oregon Univ., Eugene. ERIC_Clearinghouse on Educational Administration.National Center for Educational Research andDevelopment (DHEW /CE) , Washington, D.C.BR-8 035370OEC-8-080353-351460p.; ERIC/CEM State-of-the Knowledge Series, Number8; NOTADE Monograph Series, Number 1National OrganizatioT on Legal Problems ofEducation, 825 Western Avenue, Topeka, Kansas 6660ti($3.501

EDRS Price MF-$0.50 HC-$3.10*Activism, *Court Cases, *Court Litigation,Discipline Policy, *Freedom of Speech, MaritalStatus, *School Law, Student Attitudes, StudentBehavior, Student School Relationship, Unwed Mothers

ABSTRACTThis monograph reviews and analyzes relevant

decisions dealing with the control of student activities by publicschool authorities. The report focuses on recent court cases thatreaffirm, amplify, or extend entrenched constitutional and common lawprinciples undergirding the public educational system in the UnitedStates. After setting the legal framework for control of studentactivities, the author discusses the law relevant to married studentsand mothers, rights of parents and students, rules of conduct, dressand appearance, expression of opinion, secret societies, anddetermination of punishments. (Author/JF)

Legal Aspects of. Control of Student

Utilities by Public School Officials

C)

E. EDMUND REUTTER,

1970

U.S. DEPARTMENT Of HEALTH, EDUCATION & WELFARE

OFFICE OF EDUCATION

THIS DOCUMENT HAS BEEN REPRODUCED EXACTLY AS MEMO FROM THE

PERSON OR ORGANIZATION ORIGINATING IT. POINTS OF VIEW OR OPINIONS

STATED DO NOT NECESSARILY REPRESENT OFFICIAL OFFICE OF EDUCATION

POSITION OR POLICY.

/420 Commissioned by0 ERIC Clearinghouse on

Educational Management

ILI3, s 0

Published byNational Organization on

Legal Problems of Education

Table of Contents

PAGE

1. Introduction

2. Legal Framework 2

Bases of Control 2

Scope of Control 3

In Loco Parentis 3

The Presumption of Validity 3

The Test of Reasonableness 4The Role of the Courts 4

3. Rights of Parents and Students, in General 5

4. Rules of Conduct, in General 6

5. Dress and Appearance 10

Prescribed Dress and Appearance 10

Prohibited Dress and Appearance 12

Hairstyles and Beards 15

6. Secret Societies 24

State Statutes 24

Local Board Regulations 28

7. Married Students and Mothers 30

Permanent Exclusion 30

Exclusion with Alternative Opportunities 32

Temporary Exclusion 33Restrictions on Extracurricular Activities 35

8. Expression of Opinion 39

Insignia and Emblems 39Publications 44

9. Determination of Punishments 49

10. Concluding Comments 51

DISCLAIMER

The ERIC Clearinghouse on Educational Management (formerlythe Clearinghouse on Educational Administration) operates undercontract with the Office of Education of the United States De-partment of Health, Education, and Welfare. This publicationwas prepared pursuant to that contract. Contractors undertakingsuch projects under government sponsorship are encouraged toexpress freely their judgment in professional and technical matters.Points of view or opinions do not, therefore, necessarily representofficial Office of Education position or policy.

ERIC/CEM State-of-the-Knowledge Series, Number Eight

NOLPE MONOGRAPH SERIES, Number One

FOREWORDThis monograph by E. Edmund Reutter, Jr., is one of a series

of state-of-the-knowledge papers* dealing with the general topicof student control and student rights in the public schools. Thepapers were prepared through a cooperative arrangement betweenthe ERIC Clearinghouse on Educational Management and the Na-tional Organization on Legal Problems of Education (NOLPE).Under this arrangement, the Clearinghouse provided the guide-lines for the organization of the papers, commissioned the authors,and edited the papers for content and style. NOLPE selected thetopics and authors for the papers and is publishing them as partof a monograph series.

Dr. Reutter focuses on "relatively recent cases that reaffirm,amplify, or extend firmly entrenched constitutional and common,law principles undergirding the public educational system in theUnited States." Skillfully and with superb judgment, Dr. Reutterreviews and analyzes the relevant written judicial decisions deal-ing with the control of student activities by public school author-ities. After setting the legal framework for control of student ac-tivities, Dr. Reutter discusses the law relevant to rights of parentsand students, rules of conduct, dress and appearance, secret soci-eties, married students and mothers, expression of opinion, anddetermination of punishments.

Dr. Reutter is professor of education in the Division of Educa-tional Institutions and Programs at Teachers College, ColumbiaUniversity. He holds a bachelor's degree from Johns Hopkins Uni-versity, and received his master's and doctor's degrees from Teach-ers College, Columbia University.

A nationally recognized scholar in the field of school law, Dr.Reutter is past-president of the National Organization on LegalProblems of Education, regional editor of the NOLPE School LawReporter, and the author of numerous books and articles on schoollaw. His most recent books are The Law of Public Education(1970), with R. R. Hamilton; Schools and the Law (revised 1970);and the 1970 edition of The Yearbook of School Law, with Lee 0.Garber.PHILIP K. PIELE, director JOHN PHILLIP LINN, presidentERIC Clearinghouse National Organization on Legalon Educational Management Problems of Education

The other four papers are: (1) Rights and Freedoms of Public School Students, byDale Gaddy, director. Microform Project, American Association of Junior Colleges, Wash-ington, D.C.; (2) Suspension and Expulsion of Public School Students, by Robert E.Phay, associate professor of public law and government, University of North Carolina;(3) Crime Investigation and Prevention in the Public Schools, by William G. Buss, pro.fessor of law, University of Iowa; and (4) Student Records, by Henry E. Butler, Jr., pro-fessor of Educational Administration, University of Arizona.

ERIC and ERIC/CEM

The Educational R:isources Information Center (ERIC) is a na-tional information system operated by the .;..Inited States Office ofEducation. ERIC serves the educational community by dissemi-nating educational research results and other resource informationthat can he used in developing more effective educational pro-grams.

The ERIC Clearingliou,,e on Educational Management, one oftwenty such units in the system, was established at the Universityof Oregon in 1966. The Clearinghouse and its nineteen companionunits process research reports and journal articles for announce-ment in ERIC's index and abstract bulletins.

Research reports are announced in Research in Education (RIE),available in many libraries and by subscription for $21 a yearfrom the United States Government Printing Office, Washington,D.C. 20402. Most of the documents listed in RIE can be purchasedthrough the ERIC Document Reproduction Service, operated bythe National Cash Register Company.

Journal articles are announced in Current Index to Journals inEducation. CIJE is also available in many libraries and can beordered for $34 a year from CCM Information Corporation, 909Third Avenue, New York, New York :10022. Annual and semi-annual cumulations can be ordered separately.

Besides processing documents and journal articles, the Clearing-house has another major functioninform ttion analysis and syn-thesis. The Clearinghouse prepares bibliographies, literature re-views, state-of-the-knowledge papers, and other interpretive re-search studies on topics in its educational area.

NOLPE

The National Organization on Legal Problems of Education(NOLPE) was organized in 1954 to provide an avenue for the studyof school law problems. NOLPE does not take official positionson any policy questions, does not lobby either for or against anyposition on school law questions, nor does it attempt in other waysto influence the direction of legislative policy with respect topublic education. Rather it is a forum through which individualsinterested in school law can study the legal issues involved in theoperation of schoole.

The membership of NOLPE represents a wide variety of view-pointsschool board attorneys, professors of educational admin-istration, professors of law, state officials, local school adminis-trators, and executives and legal counsel for a wide variety of edu-cation-related organizations.

Other publications of NOLPE include the NOLPE SCHOOLLAW REPORTER, NOLPE NOTES, and the NOLPE SCHOOLLAW JOURNAL.

LEGAL ASPECTS OF CONTROL OF STUDENTACTIVITIES BY PUBLIC SCHOOL AUTHORITIES

By E. EDMUND REUTTER, JR.*

INTRODUCTION

The purpose of this paper is to analyze and synthesize the lawsrelevant to control of student activities by public school authorities.The paper focuses on student activities associated with generalconduct, as distinguished from curricular activities. By law ismeant judicial decisions regarding the application of written stat-utes and rules, and judicial decisions in situations where no writ-ten regulations are involved. Value judgments, both educationaland legal, will be avoided, except in the final section. This treat-ise is an andysis, not an advocacy.

The number of judicial decisions involving student conduct hasburgeoned rapidly in recent years. The increased use of the judi-ciary to resolve conflicts between pupils (or parents) and schoolauthorities has been a salient characteristic of the past decade. Oldissues and questions have been reraised in modern trappings, andnew queries have been put to the courts regarding the perennialconflict between rights and duiies of students and rights and dutiesof school authorities.

Because each case arises in a context of facts, careful examina-tion of the facts that form the setting of a specific judicial hold-ing is essential. If the facts in a subsequent case are substantiallydifferent, the holding does not serve as precedent. Frequently,many issues are interwoven in a given case, requiring careful un-derstanding of the basic legal question(s) answered by the court.For example, two cases substantively concerned with the regula-tion of secret societies of students may differ legally from eachother far more than do a particular secret society case and a par-ticular student marriage case. If a case is decided on a technicalpoint, guidance for educators on substantive points may be com-pletely lacking. Further, it must be emphasized that the long-range consequences of a decision derive from its central rationale,not from the drama of whether plaintiff or defendant prevailedor the presence of quotable and appealing phraseology.

*Professor of Education, Teachers College, Columbia University. (Prepared as state-of-the knowledge paper for ERIC/CEA, May 1970).

1The analysis covers published decisions of federal courts through April 1970 and ofstate appellate courts through the April 1970 General Digest.1

Generally, the paper focuses on relatively recent cases that re-affirm, amplify, or extend firmly entrenched constitutional andcommon-law principles undergirding the public educational sys-tem in the United States. Some general principles and under-standings, however, will be briefly recalled as a setting for themajor portion of the treatise.

LEGAL FRAMEWORK FOR CONTROL OFSTUDENT ACTIVITIES

Bases of Control

School boards in all states have express or implied power toadopt rules and regulations relating to student conduct. Typically,statutes grant to boards of education broad powers and also somespecific powers related to student control. Among the more con-crete statutes, some restate the common-law authority of schoolpersonnel, some expand or contract the common law, some set upprocedures to be used in meting out punishments, and some pro-hibit specific punishments. Expulsion is the punishment that re-ceives the most frequent spe, 'tic attention, in statutes.

It is well settled that the state has the power to require its youngto submit to instruction in those subjects "plainly essential to goodcitizeuship."2 Of necessity, therefore, those in charge of the schools(state boards of education, chief state school officers, local boardsof education, and professional staffs of local school systems) mustbe empowered to establish reasonable rules and regulations. Al-though local rules and regulations may not supersede statutes orregulations of state-level educational authorities, they may imple-ment and supplement them. Of course, neither state nor federalconstitutional rights of students may be abridged by any rule.

Because it is impossible to promulgate rules and regulations tocover all situations, rules need not be in writing to be enforceable.Also, out of concern for practicality and reality, the courts recog-nize that school administrators and teachers must possess impliedpowers to control pupil conduct on matters and with methods notin conflict with local board policy or higher authority. Often incases of pupil discipline the rule and the punishment for violat-ing it are inextricably interwoven. Also, particularly in some re-cent cases, the issue of procedural due process has overshadowedboth the rule and the penalty.

2Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925).2

Scope of Control

The control school authorities may exercise over the activities ofstudents circumscribed by the nature of the relationship be-tween public schools and pupils. Rules and regulations must haveas their objective the proper functioning of the school. They mustreasonably relate to the purposes for which schools are established.Thus, conduct that can reasonably be deemed contrary to the edu-cational mission of the school can be proscribed.

The courts recognize the need for a proper atmosphere so thatlearning can take place. Thus, activities disruptive of the generaldecorum of the school are punishable. Disruption of the climateof learning affects the rights of other children to receive an educa-tion. Interference with the rights of others may be specific, suchas physically barring access to facilities; or it may be general, suchas acting to undermine the authority of school personnel overpupils.

Even conduct off school premises can be controlled by schoolauthorities if it can be shown to be deleterious to the efficientoperation of the school. The crucial issue is the effect of the con-duct on the operation of the school, rather than the time or placeof the offense. However, of course, it is much more difficult forschool authorities to justify the reasonableness of control exercisedover out-of-school activities of pupils,

The "In Loco Parentis" DoctrineThe common-law measure of the rights and duties of school

authorities relative to pupils attending school is the in loco parentisconcept. This doctrine holds that school authorities stand in theplace of the parent while the child is at school. Thus, school per-sonnel may establish rules for the educational welfare of the childand may inflict punishments for disobedience. The legal test iswhether a reasonably knowledgeable and careful parent might soact. The doctrine is used not only to support rights of schoolauthorities (the focus of this paper), but to establish their respon-sibilities concerning such matters as injuries that may befall stu-dents.

The Presumption of ValidityThe law presumes that those having authority will exercise it

properly. Generally, therefore, in claims of improper applicationof authority, the burden of proof is on the person making the3

claim. For example, a parent who objects to a rule or to a punish-ment generally has the burden of establishing unreasonableness.

However, the board must have some basis for its actions otherthan the assertion that it is acting in the best interests of the pupilor school. Further, the more closely a rule comes to infringing up-on a basic constitutional right of a pupil, the more justificationschool authorities must have for the rule. As more and more rulesare being challenged on constitutional grounds, particularly FirstAmendment grounds, courts are looking much more closely at therationales offered by school authorities to support challenged rules.

The Test of Reasonableness

The ultimate determination of reasonableness is a function ofthe courts. Reasonable means that the action could be acceptedby men of normal intelligence and experience as rationally appro-priate to the end in view. To declare invalid a rule controllingstudent activities in public schools, it must be shown to be unrea-sonable. Obviously, it is not reasonable to fail to comply with thefederal or gate constitution or statutes properly enacted thereun-der. However, many, if not most, rules are not disposed of underthe rubrics of unconstitutionality or contrariness to statute. Rulesfrequently involve implied powers of school authorities, ratherthan express powers.

For the test of reasonableness, a rule of pupil conduct must beassessed in terms of the educational goal to be achieved and thelikelihood the rule will help achieve that goal. That reasonable-ness does not exist in the abstract will be illustrated in this paper.A rule may be declared unreasonable per se, or in its particularapplication. This distinction is important legally.

The Role of the Courts

Of crucial importance in understanding the relation of thecourts to control of student activities by public school authoritiesis the paramount principle that the courts will not interfere withan act of the legislative or the administrative branch unless thebranch has exceeded its powers or has abused its discretion inwielding its powers. It must be emphasized that the question be-fore a court is not whether the court approves the rule as one itwould have made, had it been in control of the administrative orlegislative branch. Nor is the question whether the rule is essen-tial to the proper operation of the school. As noted previously, the4

burden of proof of improper action by school authorities is gen-erally on the complainant.

Courts theoretically may not pass on the wisdom of legislativeor administrative acts. Thus, disagreement with the desirabilityor efficacy of a regulation cannot form the basis of a complaint tobe handled by the judiciary. The subject matter of a school re-gulation may be attacked coll. if it is alleged fiat the domainof the rule is not a proper one for intrusion by school authorities,that the regulation violates a prescription of the federal or stateconstitution or a statute, or that the rule is unreasonable in thesense discussed in the preceding section.

Through the years courts have rendered judgments in specificsituations and have recorded their reasoning when they have sus-tained or annulled given rules. From an analysis of these opin-ions, guidance can be obtained as to considerations courts will belikely to weigh in deciding future cases. The major portion of thispaper is devoted to such analysis.

RIGHTS OF PARENTS AND STUDENTS, IN GENERAL

Operation of the public schools without rules and regulationswould be impossible. Those regulations that pertain to conductobviously restrict the rights of students and parents. Indeed, thewhole concept of compulsory education is an exception to the rightof the parent to direct completely the upbringing of his children.

The United States Supreme Court in 1925 discussed the rightsof parents in a case where it held that the compulsory-educationrequirement need not be met in a public school, but could be metin a private school.3 In this case a private sectarian school and aprivate nonsectarian school had contended they were being de-prived of their constitutional right to engage in a useful businessby an Oregon statute that required children of certain ages to at-tend public schools only. Although the Court decided the case onthe basis of Fourteenth Amendment property rights of the schools,it discussed parents' rights as follows: "The child is not the merecreature of the State; those who nurture him and direct his destinyhave the right, coupled with the high duty, to recognize and pre-pare him for additional obligations."

The Court further stated that "rights guaranteed by the Consti-tution may not be abridged by legislation which has no reasonable

3Pierce v. Society of Sisters, supra; note 2.5

9

relation to some purpose within the competency of the State." Itcommented that the challenged statute "unreasonably interfereswith the liberty of parents and guardians to direct the upbring-ing and education of children under their control."

In 1969, in its first opinion directly on regulation of student con-duct per se, the Supreme Court said, "First Amendment rights,applied in light of the special characteristics of the school environ-ment, are available to . . . students. It can hardly be argued that. . . students . . . shed their constitutional rights to freedom ofspeech or expression at the schoolhouse gate."4

Although technically the rights of pupils and the rights of par-ents may be separable, in this paper these rights are treated to-gether as on one side of the balance, with the rights of schoolauthorities on the other side. (Because most public school stu-dents are minors, suits involving school regulations generally arebrought by parents or guardians either on their own behalf or onbehalf of the students affected.) How the balance is struck by thecourts in specific situations will be discussed in subsequentsections.

RULES OF CONDUCT, IN GENERALIn the 1969 case referred to in the preceding section, the United

States Supreme Court stated it "has repeatedly emphasized theneed for affirming the comprehensive authority of the States andof school authorities, consistent with fundamental constitutionalsafeguards, to prescribe and control conduct in the schools."5

In a 1968 case in which the Court invalidated a statute thatbarred teaching the theory of evolution in public institutions, theCourt stated,

Judicial interposition in the operation of the public school system of theNation raises problems requiring care and restraint. Our courts, how-ever, have not failed to apply the First Amendment's mandate in our edu-cational system where essential to safeguard the fundamental values offreedom of speech and inquiry and of belief. By and large, public edu-cation in our Nation is committed to the control of state and local author-ities. Courts do not and cannot intervene in the resolution of conflictswhich arise in the daily operation of school systems which do not directlyand sharply implicate basic constitutional values. On the other hand,"The vigilant protection of constitutional freedoms is nowhere more vitalthan in the community of American Schools. . . . "6

4Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct.733 (1969).

5Tinker v. Des Moines Independent Community School District, supra, note 4.°Epperson v. State of Arkansas, 393 U.S. 97, 89 S.Ct. 266 (1968).6

Over a half-century before, in upholding the right of Mississippito prohibit secret fraternities and sororities in the educational in-stitutions of the state, the Court said, "It is not for us to entertainconjectures in opposition to the views of the State, and annul itsregulations upon disputable considerations of their wisdom or ne-cessity."?

The general power of school boards to enact rules and regula-tions governing the conduct of students during the school day iswell established. From a legal viewpoint, one of the most trouble-some periods of the school day has been the lunch period. Severalcases dealing with school regulations on the lunch period havebeen decided by the courts. The leading case was decided in 1926by the Supreme Court of Appeals of Virgirtia.8 At issue was thevalidity of a rule that prohibited children from leaving schoolpremises during the school day. Parents of two children askedto have them relieved of this restriction so they could eat a mid-day meal at home or with their father in a downtown hotel. Theexception to the rule was denied, but the children continued toeat lunch with their father at the hotel. The students were sus-pended from school, and the parents filed suit.

The court found the rule reasonable. It stated, "while it maybe argued with force that a warm meal at midday is preferableto a cold lunch, it is not conclusive that the latter is destructive ofhealth. It is a matter of common knowledge that in the towns andrural sections the vast majority of school children partake of acold lunch at midday." However, the court admonished schoolauthorities that "while a rule may be legally reasonable, it shouldnot be without elasticity. In the enforcement of every law thereshould be brought into play the element of common sense."

The advent of school cafeterias led some school boards to re-quire that students who did not go home for lunch remain inschool and either buy food in the cafeteria or eat there foodbrought from home. In effect, the patronizing of neighborhoodeating establishments was barred. The power of school boards toestablish such rules has been uniformly upheld. As justificationfor these rules, courts emphasize the health of the children and thedisruption that would be caused by students coming and goingfrom eating places off the premises. The fact some private busi-nesses may be denied sales to pupils during the school day does

7Waugh v. Board of Trustees of the University of Mississippi, 237 U.S. 589, 35 S.Ct.720 (1915).

8Flory v. Smith, 145 Va. 164, 134 S.E. 360 (1926).7

not render the rules invalid. The most recent appellate court soto hold was the Court of Appeals of Kentucky in 1955.° Citingthe Flory case (supra), the Court said:

It is common knowledge that children, if allowed to depend upon theirown selection, often indulge themselves in unbalanced diets. Furthermore,if uncontrolled at table young children are apt to enagage in rough or un-couth practices and conduct. If the school lunch is to be successful, thenall children who purchase their noon meal may be required to do so fromthe school lunchroom. The regulation appears to be for the commongood of all children attending this school and we find that it is not unreas-onable or arbitrary.

A related rule was upheld by the Court of Civil Appeals ofTexas in 1960." The regulation provided that students drivingautomobiles to school must park them in the parking lot whenthey arrive at school in the morning and not move them until 3:45p.m. unless by special permission. The case arose when a girl(with the encouragement of her father) insisted on parking hercar at a private house one block from the school, going home tolunch in it each day, and reparking it at the same place untilschool was over for the day.

Before sustaining the power of the board to enforce the ruleagainst the girl, the court received uncontroverted testimony that,prior to the rule, fifty or sixty automobiles driven to school bystudents would be driven away at the noon hour. The high school.the parking area, a grade school, and playgrounds were all lo-cated in the immediate vicinity, and small children would be pass-ing at the time the cars were leaving. The court found the regu-lation valid because it was "for the purpose of controlling the con-duct of the students to the end that student pedestrians on thestreets adjacent to the schools might be safe from student operatedautomobiles and that better order, decorum and discipline mightprevail at the noon recess."

Perhaps the oldest appellate case dealing with control of schoolactivities off school premises is one decided in 1859 in Vermont. Ahigh school pupil, in the presence of other pupils, but after schoolhours and after he had returned home, called the teacher "oldjack Seaver."11 The next morning Mr. Seaver whipped the boy.The boy's father brought suit. The Supreme Court of Vermontheld the punishment justified because the misbehavior had a "di-rect and immediate tendency to injure the school, to subvert the

°Casey County Board of Education v. Luster, 282 S.W.2d 333 (Ky. 1955).toMcLean Independent School District v. Andrews, 333 S.W.2d 886 (Tex.Civ.App. 1960)."Lander v. Seaver, 32 Vt. 114, 76 Am.Dec. 156 (1859).8

master's authority, and to beget disorder and insubordination."The court distinguished between punishable and unpunishable off -school- premises conduct as follows:

[Punishable conduct] is not misbehavior generally, or toward other per-sons, or even toward the master in matters in no ways connected with theschool. For, as to such misconduct committed by the child after his re-turn home from school, we think the parents, and they alone, have thepower of punishment. But where the offense has a direct and immediatetendency to injure the school and bring the master's authority into con-tempt . . . we think he has the right to punish the scholar if he comesagain to school . . .

One of the most-quoted cases dealing with punishment of pupilsfor acts committed off school premises was decided by the Su-preme Court of Errors of Connecticut in 1925.12 The principalhad received a complaint from the mother of two small girl pupilsthat they had been frequently abused by three boys while ontheir way home from school. The principal later received a notefrom the mother saying she had witnessed the same boys annoy-ing two other small girls who were on their way home from school.The locality was the premises of the mother of one of the boys.

The principal summoned the boys to the office and told them ofthe offenses charged against them. When the boys admitted theirguilt, the principal administered corporal punishment in a mod-erate manner. Suit for damages was brought by the boy wholived where the incident occurred. The question before the ap-pellate court was whether a rule could be adopted "which attemptsto control the conduct of pupils outside of school hours after theyhave reached their homes." In finding that the principal had thepower to act as she did, the court said:

Examination of the authorities clearly reveals the true test of the teach-er's right and jurisdiction to punish for offenses not committed on theschool property or going and returning therefrom, but after the return ofthe pupil to the parental abode, to be not the time or place of the offense,but its effect upon the morale and efficiency of the school, whether it infact is detrimental to its good order, and to the welfare and advancementof pupils therein. If the conduct punished is detrimental to the best in-terests of the school, it is punishable, and in the instant case, under therules of the school board, by corporal infliction.

In answer to the argument that the proper resort of the principalin correcting the abuse was to the parents or to the public pros-ecutor, the court stated:

120'Rourke v. Walker, 102 Conn. 130, 128 A. 25 (1925).

_9_

Some parents would dismiss the matter by saying that they give no atten-tion to children's quarrels; many would champion their children as beingall right in their conduct. The public authorities would very properlysay, unless the offense resulted in quite serious injury, that such affrayswere too trifling to deserve their attention. Yet the harm to the school hasbeen done, and its proper conduct alid operations seriously harmed, bysuch acts.

The court pointed out that, although the plaintiff had reached hishome after school, his victims had not.

Two old cases illuminate the degree of control school authori-ties have over activities related to off-campus study of pupils. Inone case the court held that a teacher was justified in punishinga pupil for refusing to do homework." The rule was enforceableeven though the pupil had home obligations after school hours.

In contrast, a rule requiring pupils to remain at home and studybetween the hours of seven and nine in the evening was declaredinvalid." In this case the court stated:

Certainly a rule which invades the home, and wrests from the parent hisright to control his child around his hearthstone, is inconsistent with anylaw that has yet governed the parent in this state .. . In the home the par-ental authority is and should be supreme. . . .

It may be that the school authorities would have a right to make certainregulations and rules for the good government of the school which wouldextend and control the child even when it has reached its home; but if thatpower exists, it can only be done in matters which would per se have adirect and pernicious effect on the moral tone of the school, or have atendency to subve-t and destroy the proper administration of schoolaffairs.

DRESS AND APPEARANCE

Legal problems related to dress and appearance of students havemushroomed in recent years, with students and parents challengingattempts by school officials to prescribe or prohibit certain modesof dress or appearance. The overwhelming majority of cases havedealt with attempts to prohibit styles of dress or appearance, es-pecially hairstyles and beards.

Prescribed Dress and Appearance

Rarely has the prescribing of specific dress been involved in ap-pellate courts. However, one case met squarely the issue of theenforceability of a school board regulation that required boys at-

"Bolding v. State, 23 Tex.App. 172, 4 S.W. 579 (1887).14Hobbs v. Germany, 94 Miss. 469, 49 So. 515 (1909).

10

tending a county agricultural high school to wear khaki uniformson campus and in public places within five miles of the school.'Some students boarded at the school; others were day pupils.

The Supreme Court of Mississippi upheld the rule as applicableto the students who were boarding at the school because they wereunder the care and custody of the authorities for the term. How-ever, the rule could be applied to day pupils only when they wereactually in school or going to or from school. The board had ar-gued that, because of local conditions, the regulation was necessaryfor the maintenance of discipline. This appears to be the onlyappellate case decided on substantive grounds on the point of pre-scribed dress for school attendance.

A recent case involved a California school board's order that re-quired female students at one high school to wear, four days aweek, prescribed clothing as follows: "middy blouse with collarand tie, and a blue, black, or white skirt." A girl ignored this ruleand appeared at school "neatly and modestly dressed in a non-uniform blouse and skirt." She stated she would not wear theuniform because the regulation was "unreasonable and a violationof her constitutional rights." She did not claim religious or costgrounds. School officials suspended her. Suit was brought toprohibit the enforcement of the requirement and to reinstate thegirl. The trial court ruled against the board, but on appeal thatdecision was reversed on procedural grounds.16 However, the ap-pellate court noted that no evidence had been presented by theboard as to conditions that might support the rule.

Prescription of elements of dress on specific occasions in theschool must meet the test of reasonableness, with the burden ofproof on the complainant. For example, a school board in Iowa re-quired the wearing of a gown at graduation. Three girls who re-fused to wear the gown were prohibited by the board from par-ticipating in the ceremony and receiving their diplomas. TheSupreme Court of Iowa ruled that the wearing of the cap andgown had no relation to educational values and that the diplomas,which had been withheld, must be awarded." However, the courtemphasized, "We are not questioning the wearing of caps andgowns. It is a custom we approve. The board may deny the rightof a graduate to participate in the public ceremony of graduationunless a cap and gown is worn."

15Jones v. Day, 127 Miss. 136, 89 So. 906 (1921).talloonan v. Green, 276 A.C.A. 44, 80 Cal.Rptr. 513 (1969).tWalentine v. Independent School District of Casey, 191 Iowa 1100, 183 N.W. 434

(1921).

11

The wearing of certain types of clothing in such classes as shopand physical education would seem necessary for the safety ofpupils. The Supreme Court of Alabama dealt at length with thematter of prescribed clothing in physical education in a case wherea girl wo suspended from high school because she refused to par-ticipate in the required physical education class.18 Her refusalwas directed against the uniform to be worn for the exercises.which she contended was "immodest and sinful." She was sup-ported by her father, who did not wish her even to be in the pres-ence of the teacher and other pupils wearing the outfit.

The school officials stated they would permit the girl to dressin a manner she considered suitable and would allow her not topartake in any exercise that required clothing she or her parentsthought immodest. However, her father did not want her to at-tend the class at all.

The court ruled that the girl must participate in the physicaleducation class under the modified circumstances allowed by theschool officials. The court believed appropriate concessions hadbeen made by the school authorities. It rejected the parent's claimthat, out of respect for the girl's religious beliefs, she should beplaced in a special class for students who shared her beliefs soshe would not stand out as a "speckled bird" in the regular class.

Some school "dreg 3 codes" are worded positively (prescriptions)and some negatively (proscriptions). Regardless of the grammarof these codes, cases that have reached the level of court cited inthis paper have revolved about the key question whether a studentmay be punished, usually by exclusion, if his appearance does notconform to the code. These cases are treated in sections immedi-ately following.

Prohibited Dress and Appearance

For well over three decades before 1965 no case reached a fed-eral or an appellate state court in which the decided issue was theright of a school board to restrict the dress of a student as a con-dition for attending school. Beginning in 1965, however, a con-tinuing rash of cases on this point has appeared. Indeed, thereare very few areas in school law in which so many cases dealingwith the same subject have been handled by so many courts inso short a period of time.

l8Mitchell v. McCall, 273 Ala. 604, 143 So.2d 629 (1962).

12 --

The "old" cases, which generally supported the boards, set uprules and guidelines that apparently were acceptable as applieduntil very recently. A new sensitivity to individual rightsandparticularly the rights of young peoplehas emerged in our so-ciety. This sensitivity has been reflected in the courts, where ac-tions of school boards that may infringe on the constitutional rightsof pupils have come under increasing surveillance. Thus, not onlyare more students (and parents and civil libertarians in general)questioning the authority of boards in matters of dress, but thereasons school officials have for establishing the regulations arebeing more carefully examined by the courts.

Rather than leaving the burden of showing unreasonablenesscompletely on the student, the courts are requiring more evidenceof the board's basis for such rules. Although the proposition thatthe proclivities of individual judges affect the outcome of sucheases is not completely without support, analysis of the factsof the cases reveals a significant degree of consistency among thecourtsboth those courts that have upheld students in individualcases and those that have upheld school authorities. Crucial dif-ferences among cases lie in the formulation and application of therules.

A frequently cited case is a 1923 decision of the Supreme Courtof Arkansas." At issue was this board rule: "The wearing oftransparent hosiery, low-necked dresses, or any style of clothingtending toward immodesty in dress, or the use of face paint orcosmetics, is prohibited." A girl who failed to obey the rule wasdenied admission.

In upholding the board's power to establish the rule, the courtsaid it "must uphold the rule unless we find that the directorshave clearly abused their discretion, and that the rule is not onereasonably calculated to effect the purpose intended, that is, ofpromoting discipline in the school." The court commented thatwhether it would have made the rule were it in control of the dis-trict was not the question. Nor did the court find it necessary todetermine that the rule was "essential to the maintenance of dis-cipline."

The court further indicated it had "more important functions toperform than that of hearing the complaints of disaffected pupilsof the public schools against rules and regulations promulgated bythe school boards for the government of the schools." Neverthe-

19Pugeley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923).

13

less, the court recognized that "the reasonableness of such rule isa judicial question." It also noted, however, that "the directorsare elected by the patrons of the schools over which they preside. . . [and] are in close and intimate touch with the affairs of theirrespective districts, and know the conditions with which they haveto deal." The court added:

In the discharge of the duty here imposed upon us it is proper for usto consider whether the rule involves any element of oppression or humili-ation to the pupil, and what consumption of time or expenditure of moneyis required to comply with it. It does not appear unreasonable in any ofthese respects. Upon the contrary, we have a rule which imposes no af-firmative duty, and no showing was made, or attempted, that the talcumpowder possessed any medicinal properties, or was used otherwise thanas a cosmetic.

This case was cited by the United States Supreme Court in 1969in the Tinker armband case (infra). The Court noted that Tinkerwas not a case involving this type of school board regulation.

In 1931 the Supreme Court of North Dakota held that a boardof education had the power to forbid pupils from wearing metalheel plates in school." The justification for the rule was that thefloors were being damaged and a disturbance created by the noiseof the heel plates. The parents' claim of the right to determinethe clothing to be worn to school by their children was held to haveto give way to the public interest in "the conservation of schoolproperty and the maintenance of good order and discipline in theschool."

In 1934 the Supreme Judicial Court of Massachusetts sustaineda school board's enforcement of a rule that, although aimed pri-marily at membership in secret societies, barred the wearing of in-signia and apparel of such societies on school premises?'

The only published decision specifically on the wearing of slacksby girls was one decided by a New York trial court in 1969.22 Con-tested was a regulation prohibiting slacks except when "permittedby the principal between December 1 and March 31 on petition bythe student council when warranted by cold or inclementweather." A girl pupil who had been punished by detention forwearing slacks sought an injunction against enforcing the entiredress code, including the section on slacks. Although the court re-fused to annul the whole dress code, it ruled that the board had nopower to enforce the specific rule. It reasoned:

20Stromberg v. French, 60 N.D. 750, 236 N.W. 477 (1931).21Antell v. Stokes, 287 Mass. 103, 191 N.E. 407 (1934)22Scott v. Board of Education, 305 N.Y.S.2d 601 (1969).

14

.

The' simple facts that [the rule] applies only to female students andmakes no differentiation as to the kin .1 of slacks . . . make evident thatwhat is being enforced is style or taste and not safety, order, or discipline.A regulation against the wearing of bell-bottomed slacks by students, maleor female, who ride bicycles to school can probably be justified in the in-terest of safety, as can, in the interest of discipline, a regulation againstslacks that are so skintight and, therefore, revealing as to provoke or dis-tract students of the opposite sex, and, in the interest of order, a regula-tion against slacks to the bottoms of which small bells have been attached.

Hairstyles and Beards

The first appellate court decision on the question of control ofstudent hairstyle was in Massachusetts in 1965.28 A school prin-cipal told a student he must have his hair cut if he wished to at-tend school. The 'principal wrote a letter to the student's parentsindicating their son had been suspended for violation of "schooldress regulations [that] do not allow 'extreme haircuts or any otheritems which are felt to be detrimental to classroom decorum.' " Thecourt, citing with approval the Antell case (supra) and the Pugsleycase (supra), said it needed "only to perceive some rational basisfor the rule requiring acceptable haircuts in order to sustain itsvalidity. Conversely, only if convinced that the regulation ofpupils' hair styles and lengths could have no reasonable connectionwith the successful operation of a public school could we holdotherwise."

We are of opinion that the unusual hair style of the plaintiff could dis-rupt and impede the maintenance of a proper classroom atmosphere ordecorum. This is an aspect of personal appearance and hence akin tomatters of dress. Thus as with any unusual, immodest or exaggeratedmode of dress, conspicuous departures from accepted customs in the mat-ter of haircuts result in the distraction of other pupils.

We are mindful that the regulation of haircuts may affect the privateand personal lives of students more substantially than do restrictions re-garding dress. Whereas the latter need not operate beyond the schoolpremises, the former will inevitably do so. Therefore the plaintiff con-tends that the challenged. ruling is an invasion of family privacy touchingmatters occurring while he is at home and within the exclusive control ofhis parents . . .. . . [But] here, the domain of family privacy must give way in so far asa regulation reasonably calculated to maintain selool discipline may af-fect it. The rights of other students, and the interest of teachers, admin-istrators and the community at large in a well run and efficient schoolsystem are paramount.

The student's attorney presented evidence that the student hadbeen a "professional musician" and had performed at the New-

meonard v. School Committee of Attleboro, 349 Mass. 704, 212 N.E.2d 468 (1965).

15

port Jazz Festival, the New York World's Fair, and other places.The contention was made that, even if the rule per se were valid,the application to this particular student was unreasonable. Thecourt disagreed:

But the discretionary powers of the committee are broad, and the courtswill not reverse its decision unless it can be shown it acted arbitrarily orcapriciously. [Citations] The committee could have concluded that, re-gardless of the detriment to the plaintiff's professional life, only thestrictest application of the regulation could ensure its success. We can-not say that its decision was an abuse of power.

The next offic;ally reported case dealing with hairstyle was de-cided in favor of school authorities by a federal district court inTexas.24 A group of high school students had formed a musicalgroup, signed a contract with an agent, and insisted that they wereunder contract with the agent to maintain their dress and personalappearance, including a so-called "Beat le" type hairstyle.

On the opening day of school the students, accompanied by themother of one and by the booking agent, went to the office of theprincipal to confer, since the students understood they would bedenied admission to the school because of their hairstyle. Afteradmission was denied, they went to the superintendent's office,where they were told that the principal of each school sets therules and regulations regarding student dress for his school. Theboys' parents then filed suit to have the boys admitted to school.

In court the principal testified the boys' long hair caused troubleand commotion, led to obscene remarks, attracted attention, anddisrupted the classroom. He stated that, though he had not ruledout long hair completely, he did not accept the extreme "Beat le"style. He further testified that tLe agent of the boys had calledhim at home, inquired whether the boys would be admitted, andindicated he had $4,000 invested in them and was willing to investanother $1,000.

Additional testimony revealed that immediately after being re-fused admittance the boys had gone to a local recording studioand recorded a song that contained lyrics referring to the incidentof being refused admission by the principal. Copies of the recordwere produced and distributed by the agent to various radio sta-tions in the area, and the record was played on the air.

The Court of Appeals for the Fifth Circuit affirmed this deci-sion for the school board by a two-to-one vote in 1968, and the

24Ferrell v. Dallas Independent School District, 261 F.Supp. 545 (D.C.Tex. 1966).

16

United States Supreme Court denied certiorari later that year."Subsequently, the Supreme Court referred to this case in Tinker(infra) and differentiated it. The opinion of the Court of Appealsincluded the following:

In view of the testimony of [the principal] as to the various problemswhich arise in the school due to the wearing of long hair by members ofthe student body and the testimony of certain students that their hair stylehad indeed created some problems during school hours, we cannot say thatthe requirement thr t appellants trim their hair as a prerequisite to enroll.ment is arbitrary, unreasonable or an abuse of discretion. Therefore, theschool regulation as promulgated by the principal, banning long hair, isnot violative of the state constitution or statutes . . .

The [United States] Constitution does not establish an absolute right tofree expression of ideas, though some might disagree. The constitutionalright to free exercise of speech, press, assembly, and religion may be in-fringed by the state if there are compelling reasons to do so.

The compelling reason for the state infringement with which we deal isobvious. The interest of the state in maintaining an effective and efficientschool system is of paramount importance. That which so interferes orhinders the state in providing the best education possible for its people,must be eliminated or circumscribed as needed. This is true even whenthat which is condemned is the exercise of a constitutionally protectedright.

in 1969, another Court of Appeals, that of the Seventh Circuit,affirmed a district court decision in favor of a pupil in a hairstylecase from Wisconsin." The vote was two to one. At issue was thefollowing regulation:

Hair should be washed, combed and worn so it does not hang below thecollar line in the back, over the ears on the side and must be above theeyebrows. Boys should be clean shaven; long sideburns are out.

The plaintiffs were two male high school students with long hairwho were barred from attending school until their appearance con-formed to the rule.

In the trial before the district court, the school board contendedthat the regulation was valid and that to allow students not torespect board regulations would be improper for a court. Theboard argued that failure to obey a regulation is a cause of disrup-tion and that judicial interference with the board's authority wouldonly intensify such disruption. Furthermore, it asserted thatlearning to respect authority is a part of students' education. Thetrial court replied, "if the regulation is fairly found to violate the

25Ferrell v. Dallas Independent School District, 392 F.2d 697 (5 Cir. 1968), cert. denied,393 U.S. 856, 89 S.Ct. 98 (1968).

2813reen v. Kahl, 296 F.Supp. 702 (D.C.Wis. 1969), affirmed, 419 F.2d 1034 (1969).

17

Constitution, responsibility for these consequences rests with theagency which promulgated the regulation."

The court gave great weight to the lack of evidence in supportof the school board's assertions:

With respect to tho "distraction" factor, the showing in this record con-sists of expressions of opinion by several educational administrators thatan abnormal appearance of one student distracts, others. There is no dii.ecttestimony that such distraction has occurred. There has been no offer ofthe results of any empirical studies on the subject by educators, psycholo-gists, psychiatrists, or other experts. . . . From the testimony of the edu-cational administrators, it appears that the absence of such amplificationis not accidental; it arises from the absence of factual data which mightprovide the amplification.

With respect to the "comparative performance" factor, this record isequally barren. ... No hard facts are adduced even from a limited sampleto demonstrate that the academic performance of male students with longhair is inferior to that of male students with short hair, or that the formerfre less active or less effective in extra-curricular activities.

The court concluded that the school officials had "fallen far short"of bearing the "substantial burden of justification" required for arule or statute "which rudely invades . . . a highly protected free-dom." It ordered the students reinstated, with any notation of dis-ciplinary action io he expunged from their records.

The decision of the Court of Appeals stated, "The right to wearone's hair at any length or in any desired manner is an ingredientof personal freedom protected by the United States Constitution."Without precisely clarifying the derivation of the right, the courtsaid that "it clearly exists and is applicable to the states throughthe due process clause of the fourteenth amendment." This beingso, "to limit or curtail this . . . right, the state has a 'substantialburden of justification."

The appellate court commented that although state action thatdifferently treats adulvs and high school students may be justi-fied, minors are protected in school from "arbitrary and unjusti-fied governmental rules." The court emphasized the absence ofevidence to support the contentions "that (1) a Williams Bay malehigh school student whose hair is longer than the Board's standardso departs from the norm that his appearance distracts his fellowstudents from their school work, and (2) students whose appear-ance conforms to community standards perform better in school."

While we do not decide whether a valid showing of any single or com-bination of justifications, which the School Board did or did not raise,would be sufficient to satisfy the state's substantial burden, in the absence

18

4

of a valid showing of any of these justifications, such burden is clearlynot met.

The failure of appellants [school authorities] to sustain any burden ofsubstantial justification distinguishes the case at bar from the situation in[Ferrell (supra)] upon which the appellant School Board heavily relies.In Ferrell, the court in upholding the constitutionality of the school regu-lation found that wearing of long hair by students created disturbancesand problems during school hours . . . . [I]n the case at bar there is noevidence of any disturbance created by the long hair of the students.

Regarding the possibility of its decision having a potential ad-verse effect on discipline, the court observed:

To uphold arbitrary school rules which "sharply implicate basic con-stitutional values" for the sake of some nebulous concept of school dis-cipline is contrary to the principle that we are a government of laws whichare passed pursuant to the United States Constitution.

In addition to the cases already discussed, twelve other UnicedStates district court decisions regarding hairstyles and beards inpublic elementary and secondary schools have been officiallypublished.27 Eleven of these were decided in the ten-month spanending in February 1970. The courts ruled for the boards in sixof the cases and for the students in six. Students also prevailed intwo junior college cases.28 Some of the cases are being appealed.Without describing each case in detail, some observations will bemade.

The courts have differed on the precise analytical and theoreticalframework for viewing one's right to choose his hairstyle, as wellas on the extent of the right. Whether that right resides in the"penumbra" of the First Amendment, whether it is clearly withinthe First Amendment as symbolic speech, or whether it is a generalright covered by the Ninth Amendment, most of the courts haveagreed that some type of constitutional right is involved. There-fore, Fourteenth Amendment guarantees apply. Both the equalprotection and the due process clauses have been invoked as partof jurisprudential approaches to hairstyle cases.

27Brick v. Board of Education, School District No. 1, Denver, Colorado, 305 F.Supp.1316 (D.C.Colo. 1969) ; Crews v. Clones, 303 F.Supp. 1370 (D.C.Ind. 1969) ; Crossen v.Fatsi, 309 F.Supp. 114 (D.C.Conn. 1970) ; Davis v. Firment, 269 F.Supp. 524 (D.C.La.1967) ; Griffin v. Tatum, 300 F.Supp. (D.C.Ala. 1969) ; Olff v. East Side Union HighSchool District, 305 F.Supp. 557 (D.C.CaI. 1969) ; Pritchard v. Spring Branch Independ-ent School District, 308 F.Supp. 570 (D.C.Tex. 1970) ; Richards v. Thurston, 304 F.Supp.449 (D.C.Mass. 1969) ; Sims v. Colfax Community School District, 307 F.Supp. 485 (D.C.Ia. 1970) ; Stevenson v. Wheeler County Board of Education, 3C6 F.Supp. 97 (D.C.Ga.1969) ; Westley v. Rossi, 305 F.Supp. 706 (D.C.Minn. 1969) ; Wood v. Alamo Heights In-dependent School District, 308 F.Supp. 551 (D.C.Tex. 1970).

2sCalbillo v. San Jacinto Junior College, 305 F.Supp. 857 (D.C.Tex. 1969) ; Zachry v.Brown, 299 F.Supp. 1360 (D.C.Ala. 1967).

19

However, since all abstract rights can be restricted to some ex-tent under certain circumstances, the cases have revolved aboutwhether such circumstances are present in a given situation.

On occasion the Civil Rights Act of 1871 has been cited. Thisstatute imposes liability to injured parties on anyone who "undercolor" of law causes any citizen of the United States to be deprivedof any constitutional guarantees. In no case to date involvingpupils has such liability been found. The first court to deal withthis contention held that the Civil Rights Act was not applicable."The court took the position that although symbolic expression isconstitutionally protected, "a symbol must symbolize a specificidea or viewpoint," and a hairstyle does not signify anything par-ticular. The court contrasted hairstyle to such protected symbolsas saluting the flag and wearing "freedom buttons."

Although another court did assume hairstyle represented sym-bolic speech, it still refused to invalidate a school rule regardinglength of hair." Still another federal district court, though it nulli-fied a hairstyle rule, did not "find it necessary to reach or decide"the contention that hairstyle is a form of expression protected un-der the First Amendment.31 This court stated that freedom of per-sonal appearance is "highly important in preserving the vitality ofour traditional concepts of personality and individuality."

The court recognized "the basic principle that school authoritiesare possessed with the power and duty to establish and enforceregulations to deal with activities which may materially and sub-stantially interfere with the requirements of appropriate disciplinein the school." The court responded to the rationale of the schoolboard as follows:

The school authorities' "justification," or the reasons they advance forthe necessity for such a haircut rule, completely fail. If combing hairor passing combs in classes is distracting, the teachers, in the exercise oftheir authority, may stop this without requiring that the head be shorn.If there is congestion at the girls' mirrors, or if the boys are late for classesbecause they linger in the restrooms grooming their hair, appropriate dis-ciplinary measures may be taken to stop this without requiring a partic-ular hair style. If there is any hygienic or other sanitary problem in con-nection with those students who elect to wear their hair longer than thatpresently permitted by the regulation there are ways to remedy this otherthan by requiring their hair shorn. The same is true of their failure toparticipate in the physical educational programs. As to the fear that

2oDavis v. Firment, 269 F.Supp. 524 (D.C.La. 1967), affirmed, per curiam, 408 F.2d1085 (5 Cir. 1969).

aoCrews v. Clones, 303 F.Supp. 1370 (D.C.Ind. 1969).31Griffin v. Tatum, 300 F.Supp. 60 (D.C.Ala. 1969).

20

some students might take action against the students who wear hair longerthan the regulation now permits, suffice it to say that the exercise of aconstitutional right cannot be curtailed because of an undifferentiated fearthat the exercise of that right will produce a violent reaction ou the partof those who would deprive one of the exercise of that constitutional right.

The court noted that the student's academic standing was aboveaverage, that with the possible exception of his hairstyle he wasneat and well groomed, that he had caused no other disciplinaryproblems in the school, and that he was "in all respects an above-the-average student."

In cases decided since February 1969, the courts have been con-sistently referred by counsel for the plaintiff to the Tinker arm-band decision of the Supreme Court (infra). Courts that rule forthe school board emphasize that the Supreme Court's reasoning inTinker was based on a finding of "direct, primary First Amend-ment rights akin to 'pure speech" and that the Supreme Courtexpressly stated, "The problem presented . . . does not relate toregulation of the length of skirts or the type of clothing, to hairstyle or deportment." They also point out that the Court in that caseoffer I as a comparison the Fifth Circuit case of Ferrell (supra)in which the board was upheld and which the Supreme Court haddeclined to review. Courts ruling for the pupils read broader im-plications into the Tinker opinion and emphasize as crucial to en-forcement the need to show substantial interference with opera-tions of the school. Regardless of the position the courts take, theyinvariably consider the opinions of other courts that support theirviews to he "better reasoned."

Participation by students, parents, and teachers in the develop-ment of codes of dress or appearance has been cited in some cases.For example, horde importance appears to have been attached tosuch participation in a decision supporting a board rule in Den-ver.32 The court noted the dress code was periodically reviewedand at that time was under review by a committee of two parents,two students, two teachers, and two administrators. Further, itobserved that a survey of students had shown support for the re-striction on hair length. It must be emphasized, of course, thatmajority approval per se cannot deprive an individual of a con-stitutional right.

In the only case to date involving the hair of a female pupil, afederal district court in Iowa found that "regardless of the appli-cability of the First Amendment a student's free choice of his ap-

32Brick v. Board of Education, School District No. 1, Denver, Colorado, 305 F.Supp.1316 (D.C.Colo. 1969). 21

pearance is constitutionally protected under the due process clauseof the Fourteenth Amendment . . . . Moreover, the Court finds thatbecause every individual should have the right to express his in-dividuality and personality, any rule seeking to infringe such aright will not enjoy a 'presumption of constitutionality.' "88

In this case the board offered two main reasons in support of thehair rule. One was that the rule "promoted good citizenship byteaching respect for authority and instilling discipline." The courtobserved that such an argument would lead to justification of anyrule promulgated by school authorities. The other reason was thatthe typing instructor was unable to see the student's eyes duringclass. On this point, the court said, "While the Court [did] notdoubt the pedagogical importance of eye observation in typing,the Court, as trier of fact, was totally unconvinced that such aproblem actually existed in this case."

Two relevant cases have come before appellate state courts ofCalifornia. One was decided in favor of the board and the otherin favor of the student plaintiff.

The board was supported in a case where a student was deniedenrollment in a high school so long as he wore a beard. The courtstated that "the decisive issue confronting us is simply whether therespondent-School Board's Good Grooming Policy constitutes anunreasonable infringement of petitioner's constitutional rights."The court applied the test for such situations established by theSupreme Court of California. According to this test, a govern-mental agency seeking to impose restrictions on the exercise of anindividual's constitutional right must demonstrate that the restraint"rationally relates to the enhancement of the public service," that"the benefits that the public gains by the restraint outweigh theresulting impairment of the constitutional right," and that "noalternatives less subversive of the constitutional right are avail-able."

On the first point, the court noted that the evidence presented atthe trial showed the policy to be the result of the considered judg-ment of 'a number of persons experienced in education. Expertstestified the wearing of a beard would definitely disrupt the edu-cational process and as such would prejudice the environment andother students.

On the second point, the court noted that the wearing of beardsby male high school students had constituted a disruptive influ-

asSims v. Zolfax Community School District, 307 F.Supp. 485 (D.C.Ia. 1970).

22

ence on the educational process. The court reasoned, "Good studyhabits and proper conduct on the part of youngsters constituteattributes which are beneficial to the general public and far out-weigh the restraint on the peripheral right to grow a beard."

The third criterion was met as follow.;

[I]t does not appear that an alternative less subversive of petitioner'sright to grow a beard was available. The respondent-Board, confrontedwith the expert opinion of educators, coupled with actual experience atthe high school level as to the adverse effect of the wearing of moustachesby male students, was placed in the situation of adopting a Good Groom-ing Policy to either permit moustaches and beards with the attendant dis-ruption or institute the cleanshaven rule. There was no middle course orcompromise available. Under such circumstances, the Board would havebeen neglecting its responsibilities by taking a position of inaction.

Moreover, the court expressly rejected the argument that, "becausea beard cannot be donned and doffed for work or play as wearingapparel generally can," the ruling unconstitutionally extendedinto petitioner's homelife and thereby violated his right of privacy.The United States Supreme Court declined to review the deci-sion.84

In the other California case, an appellate court upheld by atwo-to-one margin a lower court order that compelled a highschool to reinstate a student who had been excluded from schoolunder a dress policy which provided that "extremes of hair stylesare not acceptable?' In this case the student did not assert hehad the right to disobey rules directed to his hair. The rule wasattacked on the ground of unconstitutional vagueness, because theexpression "extremes of hair styles" was not clarified in the rulesor in their application.

Even though this court ruled for the student, its reasoning fol-lowed that of the preceding case. Applying the same three cri-teria used in the earlier case, the court found the first two weremet. There was substantial evidence that long hair on mfle stu-dents had had a disruptive effect at the high school and that thepublic had an "obvious interest in an undistracted educational pro-cess at the school." However, the court observed that the inhibi-tion of hairstyles does restrain freedom of expression and "in thisarea, the standards of permissible statutory vagueness are strictand gm arnment may regulate 'only with narrow specificity. "

mAlcin v. Beard of Education, 262 A.C.A. 187, 68 Cal. Rptr. 557 (1968), cert.denied, 393U.S. 1041, 89 S.Ct. 668 (1969).

85Meyers v. Arcata Union High School District, 269 A.C.A. 633, 75 Cal. Rptr. 68 (1969).

23

The court, in distinguishing this case from the preceding one,said the no-beard rule in that case met the "narrow specificity"test "because a beardand its presence or absenceis a fact. 'Ex-tremes of hair styles,' however, are not facts: whether a givenstyle is 'extreme' or not is a matter of opinion, and the definitiveopinion here rested in the soleand neither controlled nor guidedjudgment of a single school official." The court pointed out thatthe importance of an education to a child is substantial, and there-fore the state cannot condition the availability of education on thechild's compliance with an unconstitutionally vague standard ofconduct. However, the court stated that the governing boardcould exercise its statutory rule-making power to adopt clear rulescovering "aspects of student dress and appearance which have anadverse effect upon the educational process at the school."

The two most recent state-level appellate court decisions on thequestion of public school student hairstyles came from the SupremeCourt of Mississippi and the District Court of Appeal of Florida.Each ruled against students who contested board regulations, theformer on the merits and the latter on a procedural point.86

SECRET SOCIETIES

State Statutes

The first appellate case that involved a state statute regulatingsecret societies in public schools was decided in California in191287 The enactment provided:

From and after the passage of this act, it shall be unlawful for any pupil,enrolled as such in any elementary or secondary school of this state, tojoin or become a member of any secret fraternity, sorority or club, whollyor partly formed from the membership of pupils attending such publicschools, or to take part in the organization or formation of any such fra-ternity, sorority or secret club; provided that nothing in this section shallbe construed to prevent anyone subject to the provisions of the sectionfrom joining the order of the Native Sons of the Golden West, NativeDaughters of the Golden West, Foresters of America or other kindred or-ganization; not directly associated with the public schools of the state.

Local boards were empowered to enforce the provisions of the actand were required to suspend or, if necessary, expel pupils whorefuse to comply.

36Shows v. Freeman, 230 So.2d 63 (Miss. 1969) ; Canney v. Board of Public Instructionof Alachua County, 231 So.2d 34 (Fla. App. 1970).

37Bradford v. Board of Education of City and County of San Francisco, 18 Cal.App. 19,121 P. 929 (1912).

24

The statute was first attacked on the ground that it created animproper "immunity to certain pupils in the public schools of thestate, viz., those in the normal schools," because only elementaryand secondary schools came under the provision of the act. It wasfurther contended that the statute granted a privilege and immun-ity to the groups named in the statute and thus constituted an un-equal appiication of law.

The court held the classification "elementary and secondaryschools" to be valid. Furthc., the court upheld the exception ofcertain groups because these organizations were not "directly as-sociated with the public schools of the state"; the distinction be-tween groups directly associated with the public schools and thosenot was a constitutional one. To the claim that the deprivation ofa citizen's right to attend public school if he belonged i,o a barredsociety violated the Fourteenth Amendment, the court answeredthat "rights and privileges granted to citizens which depend solelyupon the laws of a state are not within this constitutional inhibi-tion." The court said no person could lawfully demand to be ad-mitted as a pupil to a public school merely because he is a citizen.

Although not directly involving the public schools, a decision bythe United States Supreme Court three years later seemed to firmlyestablish the right of a state to prohibit membership in secret so-cieties by students attending public educational institutions as Arule forbidding membership in fraternities was unsuccessfullychallenged by a student seeking admission to the University ofMississippi. The Court found that the control of the universitywas under the state of Mississippi and that "whether such mem-bership makes against discipline was for the state of Mississippito determine. . . . It is not for us to entertain conjectures in opposi-tion to the views of the state, and annul its regulations upon dis-putable considerations of their wisdom or necessity."

It is very trite to say that the right to pursue happiness and exercise rightsand liberty are subject in some degree to the limitations of the law, and thecondition upon which that state of Mississippi offers the complainant freeinstruction in its University, that while a student there he renounce affili-ation with a society which the state considers inimical to discipline, findsno prohibition in the 14th Amendment.

Despite the Waugh decision, persistently through the yearsnumerous cases have dealt with control of sororities and fratern-ities. All attacks on the validity of statutes have failed, even in-

88Waugh v. Board of Trustees of the University of Mississippi, 237 U.S. 589, 35 S.Ct.720 (1915).

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eluding a challenge to a Michigan statute that required suspension,expulsion, or withholding of credit and a diploma from anyone en-rolled in a public school who was a member of a secret society.89In that case in 1951 a high school senior who belonged to a frater-nity was permitted by the board to remain in school but was deniedcredits essential to receiving a diploma. The student, aware of thepenalty, elected to challenge the constitutionality of the statute.He was unsuccessful, the Supreme Court of Michigan followingthe Waugh reasoning as regards the Fourteenth Amendment, and,further, finding that because of his willful violation of the statutethe penalty did not constitute a cruel or unusual punishment.

The United States Supreme Court in 1945 affirmed a lower courtruling that the state of Louisiana could enact a statute empower-ing local boards to suspell or expel members of secret societies."In this case, however, the children involved were beyond the ageof compulsory school attendance.

Some of the cases in this area warrant special attention becauseof judicial statements about particular contentions. The issue ofthe right of parental control was raised in a Florida case in 1945.However, the highest state court found the issue not relevant in itsdecision upholding the constitutionality I the statute.41 It flatlystated, "We cannot see that the question of state versus parentalcontrol enters into the picture in any manner. The public schoolsystem has a very definite place in our scheme of things and thequestion in every case is whether or not the high school fraternityor sorority disrupts or materially interferes with that purpose."

The Supreme Court of Oregon in 1952 discussed the issue of con-stitutional right., of pupils in a case involving a local board's ruleestablished to implement a 1909 state statute.42 The statute "de-clared unlawful" secret societies that may "exist among the pupilsof any of the public schools" in the state, and made it "the duty ofeach school board" to "suppress all secret societies" of pupils.Boards were authorized to suspend or expel "all pupils who en-gage in the organization or maintenance of such societies." After aperiod of loose enforcement, the local board adopted a series ofrules to regulate the kinds of organizations that would be per-

89Steele v. Sexton, 253 Mich. 32, 234 N.W. 436 (1931).40Hughes v. Caddo Parish School Board, 57 F. Supp. 508 (D.C.La. 1944), affirmed,

323 U.S. 685, 65 S.Ct. 562 (1945).41saum Fraternity v. Board of Public Instruction for Dade County, 156 Fla. 222, 22 So.

2d 892 (1945).42Burkitt v. School District No. 1, Multnomah County, 195 Or. 471, 246 P.2d, 566

(1952). 26

milted to operate in the schools. One rule provided that any or-ganization operating in a school must comprise only regularly en-rolled students of that school. Thus, interschool clubs and thosecontaining as members graduates or students who had dropped outof school would not be permitted. The validity of this rule was theprincipal question

The court upheld the school authorities:

There is nothing in Rule 7, nor in any other of the rules adopted by theschool board, which prevents the minor plaintiffs from assembling andassociating freely at any time and place, outside of school hours, approvedby their parents, with children from other high schools, public or private.This is their constitutional right. But they have no constitutional rightto be members of clubs organized in the high schools, and composed ofchildren attending different high schools, and which the school board mayhave substantial reason for believing to be inimical to the discipline andeffective operation of the schools. . . . When they [the students] avail-themselves of that opportunity [of public education] they must, in the na-ture of things, submit to the discipline of the schools and to regulationsreasonably calculated to promote such discipline and the high purposefor which the schools are establishedthe education of youth, which isnot limited to the imparting of knowledge, but includes as well the de-velopment of character and preparation for the assumption of the respon-sibilities of citizenship in a democracy. To attain these ends not the leastin value of the lessons to be learned are the lessons of self-restraint, self -discipline, tolerance, and respect for duly constituted Puthority. In thisregard parents and the schools have their respective rights and duties,which complement one another, and may be exercised and discharged incooperation for the welfare of the child and the state.

A similar point of view was taken a decade later by the Courtof Appeals of Ohio.48 At issue was a local board regulation thatprohibited pablic school pupils who were members of secret so-cieties from participating in "athletic, literary, military, musical,dramatic, service, scientific, scholastic, and other similar activities."Further, such students were not eligible for awards, student office,or the honor society. An anti-secret society statute existed in theOhio penal code, but the court commented that the statute was notnecessary to the sustaining of the hoard's policy.

The meetings of some clubs prohibited by the rule were held inthe homes of parents, not on school property. However, the courtstated boards of education could act as did this board against anyorganizations having a deleterious influence on school operation.The court heeded the assertion of school authorities that the clubshad a divisive effect and created administrative problems. The

48Holyroyd v. Eibling, 116 Ohio App. 440, 188 N.E.2d 797 (1962).

27 ---

r,

argument that the rule denied parents the right to select associatesfor their children off school premises was not persuasive to thecourt. No "natural" or constitutional rights of parents or pupilswere deemed violated.

Some suits have contested the applicability of anti-secret societystatutes to particular groups. This issue appeared in the previouscase. The clubs in that case had essentially the attributes of secretsocieties"rushing," pledges, initiations, pins, secret words, andmembership only on approval of club members.

Whether a club was "secret" figured prominently in a 1966 rul-ing by the Court of Appeal of California." In reversing the trialcourt, the higher court observed that the bylaws of the organizationin question permitted only twenty girls throughout the entireSacramento school system to be rushed during a semester. Nameswere proposed by letters of recommendation and each candidatehad to be sponsored by three members, the only qualifications be-ing that the girl must have reached ninth grade, have a "C" aver-age, have read two books not prescribed as compulsory reading,and "not have been a member of a club of the nature of . . . [theclub in question] within four years." Candidates were then selectedby an admission committee of sixteen girls in a process "so secretthat the general membership [was] never apprised of . . . [the com-mittee's] membership." The court described the ritual of the cluband concluded the activities were sufficient to justify legallycharacterizing the club as secret.

Local Board RegulationsThe Supreme Court of Washington in 1906 decided the first ap-

pellate case regarding control by public school authorities of secretsocieties of pupils in the absence of a pertinent state statute." Theboard of education in Seattle had adopted a rule prohibiting mem-bers of "Greek-letter Fraternities" from participating in extracur-ricular activities. Arguments similar to those that have beendirected against state statutes were also directed against this localrule. These included contentions that fraternity members were"entitled to all the privileges of said high school," that they were"unjustly prohibited from belonging to" extracurricular clubs andteams and deprived of the "customary honors attending gradua-tion," that the rules were "in excess of lawful authority," that

44Robinson v. Sacramento City Unified School District, 245 Cal.App. 2d 278, 53 Cal.Rpm. 781 (1966).

45Wayland v. Board of School Directors of School District No. 1, 43 Wash. 441, 86 P.642 (1906).

28

4A

there was "nothing objectionable in said fraternity," and that, sinceits meetings were held in the evening at homes of the memberswith the parents' consent, the students were then "under parentalcontrol."

The court learned from the evidence that the fraternity in theschool was "a branch or chapter of a general organization havingother chapters in various high schools throughout the country[and] that it [was] subordinate to a general or parent governingbody." Particular notice was taken of a magazine published byfin. fraternity that included the following editorial comment: "Theprincipal of the Seattle high school does not know what a fraternityis, or he would not attempt to enforce his proposed futile plans. Itis simply a case of all educators not educated. Imagine the mon-arch that could prohibit a man from wearing a fraternity pin . .

We hope that others will learn and save us the trouble of summon-ing our army of able attorneys, who are willing to defend us in thecourts, and in doing so will make these uneducated beings feel theirlack of knowledge with humiliation and chagrin at the expenseof the poor unfortunates." The court further observed that letterspublished in the magazine from members of the Seattle chapterand other chapters showed a "spirit of insubordination againstlawful school authority."

The court then addressed itself to the question whether the boardof education had authority to adopt the rule. In answering affir-matively, the court held that the forfeiting of "certain privilegeswhich are no necessary part of the curriculum or class work" maybe imposed on continuing members of the fraternity. The court ex-pressed the opinion that "the board has not invaded the homes ofany pupils, no have they sought to interfere with parental custodyand control," since the fraternities could continue to meet.

The court relied heavily on the testimony of the principal, whostated he had "found that membership in a fraternity has tendedto lower the scholarship of the fraternity members." He also testi-fied that "the general impression that one gets in dealing withthem is one of less respect and obedience to teachers. It is foundthat there is a tendency toward the snobbish and patronizing air,not only toward the pupils, but toward the teachers; there is a cer-tain contempt for school authority . . . . In dealing with these fra-ternity members, I have been assured more than once that theyconsidered their obligation to their fraternity [and particu!arly thenational aspect of it] greater than that to the school."

29

One of the appellant's contentions was that the trial court haderred because the evidence did not sustain its finding that all ac-tive members of the fraternity were high school students. However,the court commented that "it is immaterial whether fa specifiedmember] , or even other members, were students."

Although the view that local boards have implied powers toregulate student membership in secret societies has been acceptedto date by all courts, two cases require special attention.

The Court of Civil Appeals of Texas in 1945 considered a pointnot involved in other cases 46 It was that a rule barring fraternitymembers from participation in extracurricular activities may notbe applied to such membership during vacation period.

The only case in which school authorities were not upheld intheir regulation of secret societies was decided in St. Louis in1922.47 The Supreme Court of Missouri, stating that the domain ofthe school "ceases when the child reaches its home unless its act issuch as to affect the conduct and discipline of the school," foundin this case that the evidence of the detrimental effect of fraternitymembership on the operation of the school was not sufficient tosustain the rule.

MARRIED STUDENTS AND MOTHERS

A question asked with increasing frequency concerns the ex-tent of the authority boards of education have in relation to mar-ried students: Where compulsory-education statutes confer a rightupon persons of certain ages to attend the public schools, can thisright be denied or restricted for the sole leason of marriage?

Permanent Exclusion

The highest courts of Mississippi and Kansas in 1929 enunciatedthe rule that marriage is not an accepLible basis for permanentlyexcluding from school an otherwise qualified person. No appellatecourt has disagreed with this fundamental proposition.

In the Mississippi case it was alleged that the rule excludingmarried pupils constituted an abuse of discretion by the board ofeducation.48 In defense of the rule the board argued that "themarriage relation brings about views of life which should not be

46Wilson v. Abilene Independent School District, 190 S.W.2d 606 (Tex.Civ.App. 1945).47Wright v. Board of Education of St. Louis, 295 Mo. 466, 246 S.W. 43 (1922).48McLeod v. State ex rd. Colmer, 154 Miss. 468, 122 So. 737 (1929).

30

known to unmarried children [and] that a married child in thepublic schools will make known to its associates in the schools suchviews, which will therefore be detrimental to the welfare of theschools." The court, in uvalidating the rule, commented, "We failto appreciate the force of the argument. Marriage is a domesticrelation highly favored by the law. When the relation is enteredinto with correct motives, the effect upon the husband and wifeis refining and elevating, rather than demoralizing. Pupils asso-ciating in school with a child occupying such a relation, it seems,would be benefited instead of harmed."

The Kansas case concerned a girl who as a sophomore had leftschool at the end of the first semester, though she had been pro-moted to the second semester." When she attempted to return toschool the following fall, she was informed she would not be al-lowed to attend because she was married. The girl had borne achild "not prematurely" less than six months after her marriage,and had since separated from her husband. Evidence was offeredthat, though the girl was still married, she associated with othermen, and had "persuaded another girl sixteen years of age to ac-company her to a public dance."

On the other hand, affidavits showed that the girl was of goodmoral character, that she had attended the dance in the companyof her mother, and *hat one of the males with whom she was seenwas her cousin. The court concluded the evidence was insufficientto warrant the board's excluding the girl from school. It noted,however, that "the constitutional and statutory right of every childto attend the public schools is subject always to reasonable regula-tion, and a child who is of a licentious or immoral character maybe refused admission."

. . . [W]hile great care should be taken to preserve order and proper dis-cipline, it is proper also to see that no one within school age should bedenied the privilege of attending school unless it is clear that the publicinterest demands [it] . . . . It is the policy of the state to encourage the stu-dent to equip himself with a good education. The fact that the plaintiff'sdaughter desired to attend school was of itself an indication of characterwarranting favorable consideration.

In 1969 a United States district court in Mississippi considereda policy under which unwed mothers of school age were excludedfrom the public schools." The action was brought on behalf ofall unwed mothers of school age. The essence of the complaint

49Nutt v. Board of Education of Goodland, 128 Kan. 507, 278 P. 1065 (1929).soPerry v. Grenada Pifunicipal Separate School District, 300 F.Supp. 748 (D.C.Miss.

1969)

31

was that the policy violated the equal protection clause of theFourteenth Amendment. The court agreed, and invalidated therule.

The court spoke of the importance of education to a person liv-ing in modern society. The plaintiffs presented evidence that un-wed mothers allowed to continue their education are less likely iohave a second illegitimate child. "In effect the opportunity topursue their education gives them a hope for the future so thatthey are less likely to fall into the snare of repeat illegitimatebirths." However, the court stated it was "aware of the [schoolauthorities'] fear that the presence of unwed mothers in theschools will be a bad influence on the other students vis-a-vis theirpresence indicating society's approval or acquiescence in the illegi-timate births or vis-a-vis the association of the unwed mother withthe other students." The court then differentiated between thesituation of an unwed pregnant girl and that of an unwed mother:

The Court can understand and appreciate the effect which the presenceof an unwed pregnant girl may have on other students in a school. Yetafter the girl has the baby and has the opportunity to realize her wrongand rehabilitate herself, it seems patently unreasonable that she shouldnot have the opportunity to go before some administrative body of theschool and seek readmission on the basis of her changed moral and phys-ical condition. . . .

. . But after the girl has the child, she should have the opportunity forapplying for readmission and demonstrating to the school that she is quali-fied to continue her education. The continued exclusion of a girl withouta hearing or some other opportunity to demonstrate her qualification forreadmission serves no useful purpose and works an obvious hardship onthe individual.

The court emphasized that an inquiry should be had into eachcase and added that it "would like to make manifestly clear thatlack of moral character is certainly a reason for excluding a childfrom public education."

Exclusion with Alternative Opportunities

Sometimes when a student is excluded from regular publicschool, he may be provided with alternative facilities for obtain-ing education. In an Ohio case, for example, a board rule requiredthat a girl withdraw from school because she was pregnant; how-ever, she was allowed to continue school work at home 5' Theboard successfully contended its regulation was in the interest ofthe physical well-being of the girl and not a punitive measure. The

5iState ex rel. Idle v. Chamberlain, 12 Ohio Misc. 44, 175 N.E.2d 539 (1961).

32--

court found it to be within the board's discretion to determine thatthe presence of pregnant girls might adversely affect "the dis-cipline and gc vernment of the students."

At issue in. Texas courts was a rule that forbade admission of amarried mother to the public schools.52 The case was brought onbehalf of a sixteen-year-old mother who was prevented from en-rolling. She was married but had filed for divorce. The rulestated: "If a married pupil wants to start her family, she mustwithdraw from public school. Such a pupil will, however, be en-couraged to continue her education in the local adult educationprogram and correspondence courses."

The Court of Civil Appeals of Texas observed that the rulewould forever prevent a mother from reentering public school.Furthermore, the adult education program in the Texas commun-ity would not accept her until she became twenty-one, and avail-able correspondence courses would not provide her with fae creditsnecessary to enter college. The court invalidated the rule, butstated, "this holding does not mean that rules disciplining the chil-dren may not be adopted, but any such rule may not result insuspension beyond the current term."

Temporary Exclusion

In another Texas case, relief was sought against the applicationof a rule that required students who married during the schoolterm to withdraw from school for the remainder of the schoolyear.53 The appellate court struck down the rule, holding it wasarbitrary because it "made marriage, ipso facto, the basis fordenial of a student's right to obtain an education." The schoolboard tried unsuccessfully to distinguish the case from the pre -"eding one by stating that the rule annulled in that case had theeffect of permanently excluding the party from school, whereasthe rule in the present case provided only for temporary exclusion.The Court of Civil Appeals stated succinctly: "If a student is en-titled to admission, the question of the length of exclusion is notmaterial."

Later that year a third marriage case reached the Texas Courtof Civil Appeals.54 The question was whether marriage alone con-stitutes sufficient ground to suspend a student from school for a

52A1vin Independent School Distric. v. Cooper, 404 S.W.2d 76 (Tex.Civ.App. 1966).53Anderson v. Canyon Independent School District, 412 S.W2d 387 (Tex.Civ.App. 1967).54Carrolltort-Farmers Branch Independent School District v. Knight, 418 S.W.2d 535

(Tex.Civ.App. 1967).

33

definite period of three weeks, after which reapplication for ad-mission could be made to the principal. The court enjoined theschool board from enforcing this rule, which was not in writingon the date of marriage of the two students who had filed suit.The court ordered the board to allow the students to attend schoolfor what the court emphasized as scholastic purposes only.Noting that the girl was an honor student who hoped to earn acollege scholarship and that the boy was having such a difficulttime that if he missed classes for three weeks he would probablyfail, 'he court stated:

The great preponderance of the evidence adduced at the trial establishedthat the presence and attendance . . . [of the students under the trialcourt's injunction] did not cause turmoil, unrest and upheaval against edu-cation by fellow students. The appellees were not approached by otherstudents regarding the s? ,bject of married life. The ability of appelleesto study was not affected by marriage. The evidence also showed thatthe resolution suspending students from school for marriage had not beenuniformly applied.

The court quoted extensively from the two preceding Texas opin-ions, and summarized its holding as follows:

We think the weight of authority in Texas and in the United States isto the effect that marriage alone is not a proper ground for a school dis-trict to suspend a student from attending school for scholastic purposesonly.

The Supreme Court of Tennessee in 1957 had taken a differentstance when it sustained the temporary exclusion from school ofpupils wito inarried during the school year.55 The resolution ofthe school board provided for the automatic exclusion of pupilswho married 'luring a term for the remainder of that term, and ofpupils who married during the summer vacation for the fall se-mester. All school principals in the county had asked the boardof education to adopt the rule because they felt student marriageshad caused a deterioration of discipline and decorum in the schools.

In sustaining the rule the court stated the principals "should beregarded by reason of training, experience and observation aspossessing particular knowledge as to the problem which they sayis made by the marriage and uninterrupted attendance of studentsin their respective schools." The court gave weight to the prin-cipals' testimony that most of the disorder occurred "immediatelyafter the marriage and during the period of readjustment," and

55State ex rel. Thompson v. Marion County Board of Education, 202 Tenn. 29, 302S.Ni/.2d 57 (1957).

3A

that the "influence of married students on the other students isalso greatest at this time." The court commented:

. . . [I]t is not a question of whether this or that individual judge or courtconsiders a given regulation adopted by the Board as expedient. TheCourt's duty, regardless of its personal views, is to uphold the Board's reg-ulation unless it is generally viewed as being arbitrary and unreasonable.Any other policy would result in confusion detrimental to the progressand efficiency of our public school system.

Seven years later the validity of a similar regulation was con-sidered by the highest court of Kentucky.5° The substantive dif-ference in the wording was that the length of withdrawal was tobe for a full year, after which time a pupil could reenter schoolas a special student with permission of the principal. On reentry.however, homerooms, studyhalls, class activities, social events, andathletics were to be barred. The school board supported its policyon th s same grounds as had the Tennessee board. The school su-perintendent had stated that marriages during the school termcaused discussion and excitement, thereby disrupting school work.Moreover, some parents had requested that the rule be adopted.

The Court of Appeals of Kentucky struck down the regulation,finding "the fatal vice" to be "its sweeping, advance determina-tion that ,every married student, regardless of the circumstances,must lose at least a year's schooling." The court further notedthat the principal was not provided with any guidelines to followin granting a married student permission to resume school. lr.addition, it observed that the way school authorities enforced theregulation "accentuates the fact that the regulation is not real-istically related to its purported purpose."

It is asserted for the Board that the most intense disruptive impact of astudent marriage occurs during the time just preceding and just followingthe marriage. Yet, under the uniformly followed pattern of administra-tion of this regulation, the married student is permitted to remain in schoolduring all of the time preceding the marriage, and may remain for amaximum of six weeks thereafter. Such procedure, even though premisedon the Board's commendable desire to permit the student to complete thecurrent term, effectively frustrates the prime purpose of the regulation.

Restrictions on Extracurricular Activities

The attitude of the courts toward marriage as a cause for ex-clusion from extracurricular activities has been markedly differentfrom their attitude toward marriage as a cause for exclusion fromschool. Although there have been dissents from some opinions,

col:loud of Education of Harrodsburg v. Bentley, 383 S.W.2d 677 (Ky. 1964).

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all decisions to date have upheld the board's power to limit mar-ried students' participation in extracurricular activities.

The first case to deal specifically with the subject was decidedby the Court of Civil Appeals of Texas in 1959." The school boardpolicy provided that "married students or previously married stu-dents be restricted wholly to classroom work; that they be barredfrom participating in athletics or other exhibitions, and that theynot be permitted to hold class offices or other positions of honor."Academic honors were excepted.

A sixteen-year-old male married a fifteen-year-old female withthe result that he was barred from further participation in ath-letic activities. In challenging the rule, the student claimed hewas hoping for an athletic scholarship to a college and that therule deprived him of this opportunity. He also argued that theregulation was contrary to public policy in that it penalized per-sons because of marriage.

The school board's evidence, which satisfied the court, includedthe following: The parent-teacher association had made an ex-tensive study of teenage marriages and had recommended theboard resolution; this study had "included the ill effect of mar-ried students participating in extra-curricular activities with un-married students"; a board member, who was a professional psy-chologist and former teacher, stated that a survey among parentsof high school students "indicated a definite need for the resolu-tion"; in the previous year twenty-four of a total of sixty-twomarried students had dropped out of school and at least one-halfof the remainder had experienced a drop of at least ten pointsin grades.

As to the boy's "right" to play football with the potential ofachieving an athletic scholarship to college, the court said suchwas a "contingent or expectant" right rather than a "vested" right,despite the fact the boy had played football for the school andwas married prior to the adoption of the rule.

Regarding the public policy argument, the court noted that teen-age marriages were permitted only upon express consent of theparent or guardian and that below certain ages marriage wasprohibited. It further commented that the principle of lookingwith favor on marriage applied to those of lawful age, whereas"the legislative policy is otherwise insofar as an underage mar-riage is concerned."

571Cissick v. Garland Independent School District, 330 S.W.2d 708 (Tex Civ.App. 1959).

36

The following year the Supreme Court of Michigan, by anequally divided court, sustained a school board rule that marriedstudents "shall not be eligible to participate in any co-curricularactivities; i.e., competitive sports, band, glee club, class and classofficers, cheerleading, physical education, class plays and etc."59Two boys, each of whom was legally married, brought suit.

The superintendent testified the boys were excellent studentsand had not created discipline problems since their marriages.

After the trial court sustained the board's action, an appeal 'gasbrought, with the Attorney General of Michigan on the side of thestudents. One judge voted to affirm on the ground the case wasmoot. The three judges who upheld the rule per se cited the Kissickcase (supra). The other four, ignoring this case, wrote they couldnot find a decision by any state's highest court dealing with thequestion. (Kissick was decided by an intermediate appellate court.)They believed that a partial denial of opportunities to a studentfor the sole reason of marriage was not a reasonable exercise ofauthority by a school district.

The reasons the board had offered in support of the rule in-cluded: "the possible bad influence when married students areforced to be closely associated with their unmarried peers in anyway other than the more formal circumstances; that is, classrooms,under the immediate supervision of a teacher"; and the possiblebad effect if married students are "in a position of idolization," ason the football team, because students are inclined to emulate theirpeers.

The highest courts of Utah and Iowa have also supported thepower of school authorities to restrict extracurricular activities ofmarried students. In 1963, the Supreme Court of Utah unanimouslystated that because extracurricular activities are supplemental tothe regular classes of the academic curriculum and are suppliedunder the discretionary power of the board, the extent they aremade available can be decided by the board.59 In this case theboard had not barred married students from band, speech, drama,and choir. Permitting married students to engage in these, but notother activities, was not considered an unconstitutional discrimina-tion by the court because these activities were closely allied withregular classwork taken for credit. The court also found it proper

S8Cochrane v. Board of Education of Mesick Consolidated School District, 360 Mich.390, 103 N.W.2d 569 (1960).

58Starkey v. Board of Education of Davis County School District, 14 Utah 2d 227, 381P.2d 718 (1963).

37

for the board to permit students already married when the rulewas adopted to continue in all activities.

The court discussed its role as follows:

It is not for the courts to be concerned with the wisdom or propriety ofthe resolution as to its social desirability, nor whether it best serves the ob-jectives of education, nor with the convenience or inconvenience of its ap-plication to the plaintiff in his particular circumstances. So long as aresolution is deemed by the Board of Education to serve the purpose ofbest promoting the objectives of the school and the standards of eligibilityare based upon uniformly applied classificaions which bear some reason-able relationship to the objectives, it cannot he said to be capricious, ar-bitrary or unjustly discriminatory.

In 1967, the Supreme Court of Iowa, in upholding a rule thatbarred married students from extracurricular activities, discussedthe power of school boards to regulate student conduct on mattersoutside the domain of the school °0 The court stated it is not with-in a school board's power "to govern or control th individual con-duct of students wholly outside the school room or playgrounds."However, "the conduct of pupils which directly relates to andaffects management of the school and its efficiency is a matterwithin the sphere of regulations by school authorities."

The action was brought by a student who, though aware of theboard rule, had married. He had been a regular player on thebasketball team and wished to continuo during his senior year butwas not permitted to do so under the rule.

The board president, the superintendent, and several school of-ficials testified that the number of high-school-age marriages hadrecently increased significantly, that marriages were ordinarilyfollowed by lower grades, and that school dropouts increased in aproportion greater for married pupils than for those not married.Further testimony revealed that some married students at timesdiscussed with other students some intimate details concerningtheir marriages and that this was particu?arly true during extra-curricular activities where close supervision was more difficult.

The board presented the following eight policy considerationsit said prompted the adoption of the regulation:

1. Married students assume new and serious responsibilities. Participationin extracurricular activities tends to interfere with discharging these re-sponsibilities.

soBoard of Directors of Independent School District of Waterloo v. Green, 259 Iowa1260, 147 N.W.2d 854 (1967). 38

2. A basic education program is even more essential for married students.Therefore, full attention should be given to the school program in orderthat such students may achieve success.

3. Teenage marriages are on the increase. Marriage prior to the age setby law should be discouraged. Excluding married students from extra-curricular activities may tend to discourage early marriages.

4. Married students need to spend time with their families in order that themarriage will have a better chance of being successful.

5. Married students are more likely to drop out of school. Hence, marriageshould be discouraged among teenage students.

6. Married students are more likely to have undesirable influences on otherstudents during the informal extracurricular activities.

7. The personal relationships of married students are different from thoseof non-married students. Non-married students can be unduly influencedas a result of relationships with married students.

8. Married students may create school moral and disciplinary problems,particularly in the informal extracurricular activities where supervisionis more difficult.

EXPRESSION OF OPINION

insignia and Emblems

The basic judicial position regarding political rights of studentsin public schools was enunciated first by a panel of the Uni*edStates Court of Appeals for the Fifth Circuit in 1966. In two de-cisions announced the same day, the court ruled for the board inone and for the students in the other. Each case involved the wear-ing of "political" buttons by students. These opinions were citedwith approval by the United States Supreme Court, which usedtheir rationale in the Tinker armband case (infra).

In the first case, a number of students appeared at school wear-ing buttons containing the words "One Man One Vote" around theperimeter with "SNCC" inscribed in the center." The principalannounced that students were not permitted to wear such buttonsin the school. He justified this as a disciplinary regulation pro-mulgated because the buttons "didn't have any bearing on theireducation," "would cause commotion," and would disturb theschool program. When thirty to forty children continued to dis-play the buttons, the principal gave thew the choice of removingthem or being sent home. Most elected to go home, and the prin-cipal suspended them for one week.

The Court of Appeals invalidated the rule. The appellate benchnoted that on former occasions students had worn "Beatle buttons"

41Burnside v. Byars, 363 F.2d 744 (5 Cit. 1966).

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and buttons containing the initials of students, and these had notbeen proscribed. The court held that school children have a rightto communicate an idea silently and to encourage the members oftheir community to exercise their civil rights.

The right to communicate a matter of vital public concern is embracedin the First Amendment right to freedom of speech and therefore is clearlyprotected against infringement by state officials. . . . Particularly, theFourteenth Amendment protects the First Amendment rights of schoolchildren against unreasonable rules and regulations imposed by schoolauthorities.

The court recognized that the establishment of an educationalprogram requires the formulation of rules and regulations neces-sary for the maintenance of an orderly climate, and further recog-nized that school officials must be granted a wide latitude of dis-cretion. But it noted that in this case no situation requiring dis-cipline had arisen. The principal admitted that the children wereexpelled not for disrupting classes, but for violating the schoolregulation. The court stated:

Wearing buttons on collars or shirt fronts is certainly not in the classof those activities which inherently distract students and break down theregimentation of the classroom such as carrying banners, scaziering leaf-lets, and speechmaking, all of which have no place in an ord,,rly class-room. If the decorum had been so disturbed by the presence of the "free-dom buttons," the principal would have been acting within his authorityand the regulation forbidding the presence of buttons on school groundswould have been reasonable. But the affidavits and testimony before theDistrict Court reveal no interference with educational activity and do notsupport a conclusion that there was a commotion or that the buttonstended to distract the minds of the students away from their teachers. Nordo we think that the mere presence of "freedom buttons" is calculated tocause a disturbance sufficient to warrant their exclusion from school prem-ises unless there is some student misconduct involved. Therefore, we con-clude after carefully examining all the evidence presented that the regu-lation forbidding the wearing of "freedom buttons" on school grounds isarbitrary and unreasonable, and an unnecessary infringement on the stu-dents' protected right of free expression in the circumstances revealed bythe record.

In the second case, school authorities were upheld in banningbuttons where the record showed an unusual degree of commotion,boisterous conduct, collision with rights of others, and undermin-ing of authority.62 The buttons were similar to those of the pre-vious case.

The principal in this case had banned the buttons following adisturbance by students noisily talking about the buttons in the

euBlackwell v. Issaquena County Board of Education, 363 F.2d 749 (5 Cir. 1966).40

hall when they were scheduled to be in class. Shortly thereafter,approximately one hundred and fifty pupils came to school wear-ing buttons. These students distributed the buttons to other stu-dents in the corridors of the building and pinned buttons on someeven though they did not want them. One of the students triedto put a button on a younger child who began crying.

The principal called all the students to the cafeteria and in-formed them once again they were forbidden to wear the buttonsat school. Several students conducted themselves discourteouslyduring this time and displayed an attitude of hostility.

The next day about two hundred students appeared wearingbuttons. They were assembled and told if they returned to schoolagain wearing the buttons they would be suspended. This theydid the next day, and suspension resulted. As the suspended stu-dents gathered their books to go home, school activities were gen-erally disrupted. The students interfered with other students stillin class and urged other students to leave with them.

The court indicated that the issue presented on this appeal wasidentical to that in the previous case. The difference in the deci-sion, however, was based on the fact that in this case there wasevidence of a disturbance the school authorities had a right, if nota duty, to quell.

Not until 1969 did the United States Supreme Court issue its firstopinion involving pupil discipline per se in the Tinker case.63 Thecase concerned a school board's prohibition of the wearing of blackarmbands by students desiring to protect hostilities in Vietnam andto support a truce. The Court ruled against the board by a voteof seven to two.

Aware that certain students were planning to wear armbands,the principals of the Des Moines, Iowa, schools adopted a policythat any student wearing an ariAband would be asked to removeit, and if he refused he would be suspended until he returned with-out the armband. The Supreme Court stated:

. . . [T]he wearing of armbands in the circumstances of this case wasentirely divorced from actually or potentially disruptive conduct by thoseparticipating in it. It was closely akin to "pure speech" which, we haverepeatedly held, is entitled to comprehei.sive protection under the FirstAmendment . . . .

63Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct.733 (1969).

41

First Amendment rights, applied in light of the special characteristicsthe school environment, are available to teachers and students. It can

hardly be argued that either students or teachers shed their constitutionalrights to freedom of speech or expression at the schoolhouse gate.

But the Court added this counterbalancing point:On the other hand, the Court has repeatedly emphasized the need for

affirming the comprehensive authority of the States and of school authori-ties, consistent with fundamental constitutional safeguards, to prescribeand control conduct in the schools.... Our problem lies in the area wherestudents in the exercise of First Amendment rights collide with the rulesof the school authorities.

The Court also discussed what it was not deciding:The problem presented by the present case does not relate to regulation

of the length of skirts or the type of clothing, to hair style or deportment.Compare Ferrell v. Dallas Independent School District, 392 F.2d 697(1968) [discussed in this paper supra]; Pugsley v. Sellmeyer, 158 Ark.247, 250 S.W. 538 (1923) [discussed in this paper supra]. It does notconcern aggressive, disruptive action or even group demonstrations. Ourprobliem involves direct, primary First Amendment rights akin to "purespeech."

The school officials _mimed and sought to punish petitioners for asilent, passive, expression of opinion, unaccompanied by any disorder ordisturbance on the part of petitioners. There is here no evidence what-ever of petitioners' interference, actual or nascent, with the school's workor of collision with the rights of other students to be secure and to be letalone. Accordingly, this case does not concern speech or action that in-trudes upon the work of the school or the rights of other students.

The Supreme Court concluded that the "record does not demon-strate any facts which might reasonably have led school author-ities to forecast substantial disruption of or material interferencewith school activities." It observed that "no disturbances or dis-orders on the school premises in fact occurred." It further notedthat the principals did not ban "the wearing of all symbols of poli-tical or controversial significance," but only "a particular symbolblack armbands worn to exhibit opposition to this Nation's in-volvement in Vietnam." Such a prohibition on "one particularopinion, at least without evidence that it is necessary to avoid ma-terial and substantial interference with school work or discipline,is not constitutionally permissible."

The Court established the bounds of its holding as follows:

In order for the State in the person of school officials to justify pro-hibition of a particular expression of opinion, it must be able to show thatits action was caused by something more than a mere desire to avoid thediscomfort and unpleasantness that always accompany an unpopular view-point. Certainly where there is no finding and no showing that the exer-

- 42

cise of the forbidden right would "materially and substantially interferewith the requirements of appropriate discipline in the operation of theschool," the prohibition cannot be sustained. . . .

. . . But conduct by the student, in class or out of it, which for any rea-sonwhether it stems from time, place, or type of behaviormateriallydisrupts classwork or involves substantial disorder or invasion of therights of others is, of course, not immunized by the constitutional guar-anty of freedom of speec

Shortly after the Tinker decision, a United States dis.:r;ct courtin Ohio upheld a rule against the wearing of emblems and otherinsignia not related to school activities in a high school that hadexperienced severe racial tensions.°4 Although not in writing, therule against emblems had been applied uniformly in the school forat least forty years. Originally the rule was intended to reduceundesirable divisions created within the student body by fratern-ities and sororities. However, the rule had acquired, in the wordsof the court, "a particular importance in recent years. Studentshave attempted to wear buttons and badges expressing inflamma-tory messages, which, if permitted, and as the evidence indicates,would lead to substantial racial disorders at [the school]."

Buttons some pupils sought to wear included "White is right,""Black Power," and "Happy Easter, Dr. King." When a studentwore the latter button, a fight resulted in the cafeteria.

On another occasion, students from another school in the districtentered the corridor wearing a distinctive headdress. As they pro-ceeded down the corridor, they struck and attacked other studentswhom they had expected to join them in wearing the headdress,but who had not done so.

In the case, a student who refused to remove a button was sus-pended. The button displayed these words:

April 5 ChicagoG.I. CivilianAnti-WarDemonstrationStudent Mobilization Committee

The court distinguished the case from Tinker (supra) on severalgrounds. Here, all buttons were banned. (The court indicated itwould not be administratively feasible to check buttons for ac-ceptability or nonacceptability, and if school authorities were trbe selective, First Amendment prior-restraint problems would

°4Guzick v. Drebus, 305 F.Supp. 472 (D.C.Ohio 1969).

43

arise.) The rule in this case was long-standing and had been con-sistently applied. Further, the present situation warranted thecontinuance of the rule. "School discipline at [the school] is pos-sible because it is administered on an impartial basis. Schoolauthorities have attempted to maintain both the position and imageof complete neutrality. The adoption of a rule permitting somebuttons but excluding others would necessarily involve the schooladministration in the controversies at [the school]."

The court characterized differently the armbands in Tinker andthe buttons in this case. Whereas the armbands alone were closeto "pure speech," the court emphasized that "a button is not merelya statement; it is an identification tag. It identifies the wearer asan adherent or member of one group or class. It identifies him asnot being a member of other groups or classes. This identificationaspect exists independent of the nature of the message containedin the button."

Publications

Control of student publications by public school authorities hasled to several recent court decisions. However, up to April 30,1970, only one appellate court decision directly concerning thisissue had been officially published." This was a two-to-one de-cision of the United States Court of Appeals for the Seventh Cir-cuit, on September 23, 1969, upholding the exclusion from schoolof students who had distributed a publication including some ma-terial found offensive by the school administration, However, onApril 1, 1970, on rehearing en banc, the court set aside this decisionand ruled the pupils could not be expelled." The final decision istreated here even though it was not officially published beforeApril 30.

The en bane opinion was grounded as follows:

At no time, either before the Board of Education or in the district court,was the expulsion of the plaintiffs justified on grounds other than the ob-jectionable content of the publication. The Board has not objected to theplace, time, or manner of distribution. The [district] court found and itis not disputed the plaintiffs' conduct did not cause any commotion ordisruption of classes.

No charge was made that the publication was libelous, and the districtcourt felt it unnecessary to consider whether the language in "Grass High"

65The citation to the "Advance Sheets" of November 17, 1969, is Scoville v. Board ofEducation of Joliet Township High School District 204, 415 F.2d 860 (7 Cir. 1969). Theopinion was withdrawn before the permanent vol.ume was printed.

66Scoville v. Board of Education of Joliet Township High School District 204, 425 F.2d10 (7 Cir. 1970). 14

labeled as "inappropriate and indecent" by the Board could be sup/ .-medas obscene. The court thought that the interest in maintaining its schoolsystem outweighed the private interest of the plaintiffs in writing and pub.lishing "Grass High."

The district court's error was that it had ruled solely on the basisof the comments in the publication, particularly an editorial thatcriticized a school pamphlet sent to parents and that urged "allstudents in the future to either refuse to accept or destroy uponacceptance all propaganda that Central's administration pub-lishes."

The Court of Appeals stated that "the Tinker rule narrows thequestion before us to whether the writing of `Grass High' and itssale in school to sixty students and faculty members could `reason-ably have led [the Board] to forecast [emphasis added] substantialdisruption of or material interference with school activities . . . orintru ision] into the lives of others [sic]?" The court held that "thedistrict court erred in deciding that the complaint `on its face' dis-closed a clear and present danger justifying the defendants' fore-cast' of th, harmful consequences referred to in the Tinker rule."The appellate court found no reasonable inherence to be drawnfrom the complaint, which had merely alleged that the items werein the publication. The court continued:

While recognizing the need of effective discipline in operating schools,the law requires that the school rules be related to the state interest in theproduction of well-trained intellects with constructive critical stances, leststudents' imaginations, intellects and wills be unduly stifled or chilled.Schools are increasingly accepting student criticism as a worthwhile in-fluence in school administration.

Absent an affirma Are showing by the defendants, the district court,faced with the motion to dismiss, inferred from the admitted facts in plain-tiffs' complaint and the presented exhibits that the Board action was justi-fied. However, the district court had no factual basis for, and made nomeaningful application of, the proper rule of balancing the private inter-ests of plaintiffs' free expression against the state's interest in furtheringthe public school system . . . . No evidence was taken, for example, toshow whether the classroom sales were approved by the teachers, as al-leged; of the number of students in the school; of the ages of those towhom "Grass High" was sold; of what the impact was on those whobought "Grass High"; or of the range of modern reading material avail-able to or required of the students in the school library. That plaintiffsmay have intended their criticism to substantially disrupt or materiallyinterfere with the enforcement of school policies is of no significanceper se under the Tinker test.

The court commented that a statement in the paper "imputinga 'sick mind' to the dean reflects a disrespectful and tasteless atti-

- 45

tude toward authority" and that a statement about sex was an"attempt to amuse," but that neither could justify a "forecast ofdisruption." The decision was by a vote of five to one.

Some recent cases have treated other aspects of student publica-tions in public schools. In Ne-Ar Rochelle, New York, the right ofhigh school students to publish in the school newspaper a paid ad-vertisement opposing the war in Vietnam was judically upheld.67The advertisement read. "The United States government is pur-suing a policy in Viet Nam which is both repugnant to moral andinternational law and dangerous to the future of humanity. Wecan stop it. We must stop it." When the principal of the schooldirected that the advertisement not be published, the studentsclaimed an abridgement of their freedom of speech.

The school authorities held that the publication "is not a news-paper in the usual sense" but is "a 'beneficial educational device'developed as part of the curriculum and intended to inure primar-ily to the benefit to those who compile, edit and publish it." Theysaid the policy is that only purely commercial advertising is ac-cepted for the paper, and that even paid advertising in supportof student government nominees is prohibited. News items andeditorials are restricted to matters pertaining to the high schooland its activities. "In sum," said the court, "defendants' mainfactual argument is that the war is not a school-related activity,and therefore not qualified for news, editorial and advertisingtreatments ."

After examining back issues of the paper, however, the courtnoted that "the newspaper is being used as a communicationsmedia regarding controversial topics and that the teaching of jour-nalism includes dissemination of such ideas." The court observedthat the paper had contained an article on draft board procedures,an article on national political candidates, and reports on suchitems as the availability of draft counseling outside the school,school fund-raising for Biafra, and drugs. The court said the"presence of articles concerning the draft and student opinion ofUnited States participation in the war shows that the war is con-sidered to be a school-related subject. This being the case, there isno logical reason to permit news stories on the subject and pre-clude student advertising."

Despite the school authorities' argument t'aat the Tinker decis-ion was not relevant, the court referred to the Supreme Court's

67Zucker v. Pauitz, 299 f.Supp. 102 (D.C.N.Y. 1969).

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statement in Tinker that "personal intercommunication among thestudents" is protected not only in the classroom. The court con-cluded:

Here, the school paper appears to have been open to free expression ofideas in the news and editorial columns as well as in letters to the editor.It is patently unfair in light of the free speech doctrine to close to thestudents the forum which they deem effective to present their ideas.

Distinguishing the preceding case from one at bar, a federal dis-trict court in California upheld a ten-day suspension of two stu-dents for having violated a rule against use of "profanity or vul-garity" in an off-campus newspaper they published." The plain-tiff students contended that the Tinker test protected them be-cause the issue of the paper "did not cause disruption or interfer-ence with the normal educational program at [the school] and . . .

they were merely expressing their views and opinions, which theyhad every right to do although such expression might be unpop-ular with some."

The court found that there had been some disruption, and fur-ther, that the case presented an issue different from freedom ofspeech on political matters. It referred to testimony by the prin-cipal and the assistant principal that twenty-five to thirty teachershad told them of interruption of their classes and of inattentionby students due to their reading of, and talking about, the pub-lication. (A few teachers testified there were disruptions, andsome testified to the contrary.)

The court emphasized that the issue here was not what was said,but how it was said. Although neither pornography nor obscenityas defined by law was involved, the court was satisfied that therewere vulgarities in the text as well as in some pictures, and thatthe rule, reasonable under California statutes, was thus broken.The court concluded that "plaintiffs were not disciplined for thecriticism of the school administrators and tf- faculty, or of theVietnam war, but because of the profane and vulgar manner inwhich they expressed their views and ideas." The court notedthat prior issues of the publication had criticized the schoolauthorities, but no action was taken until the "vulgar" issue wasdistributed.

That obscene literature in public schools is not protected bygeneral considerations of free speech was observed by a United

08Baker v. Downey City Boa'd of Education, 307 F.Supp. 517 (D.C.Cal. 1969).

47

States district court in Michigan." The court stated school author-ities have the power to promulgate "rules concerning the extent towhich and the conditions under which obscene materials may ormay not be properly on the school premises. . . . Without belabor-ing the First Amendment issue unnecessarily we are constrainedto conclude that the type of regulation here cannot be consideredviolative of this plaintiff's First Amendment rights." However,the court ruled that a student could not be expelled merely forpossession of a magazine containing some words that were alsofound in a magazine in the library and in a book that was on thereading list for students.

(Previously the court had restrained the board from expellingthe student without a hearing.)

A United States district court in Houston; Texas, rendered judg-ment for students who had been expelled because of their involve-ment with a "newspaper" that had criticized school officials andcontained some material officials thought objectionable." Thecourt found the criticism to be "on a mature and intelligent level."The evidence presented as to disturbances created by distributionof the paper was deemed inadequate to support suppression of thepaper. The court further noted that the objected-to items in thepublication were "no more obscene than [a] sign hanging in theoffice of the school athletic coaches." It also observed that theboys had carefully distributed the paper and that they were notresponsible for movement of copies by "unknown persons." Thecourt give short shrift to the school authorities' argument that therewas an organized student movement attempting to "overthrow"the Houston school system and that elimination of the paper andexpulsion of the students were necessary to prevent further "in-filtration."

In a case with a complex set of facts partly concerning the con-tent of publications produced off school property, the suspensionof a high school student in New York was judicially approved?'The student had been involved in a number of incidents amountingto what the court called "a pattern of open and flagrant defianceof school discipline aided and abetted by his parents' encourage-ment." The court, in discussing the applicability of First Amend-ment rights to high school students, observed:

GoVought v. Van Buren Public Schools, 306 F.Supp. 1388 (D.C.Mich. 1969).ToSullivan v. Houston Independent School District, 307 F.Supp. 1328 (D.C.Tex. 1969).71Schwartz v. Schuker, 298 F.Supp. 238 (D.C.N.Y. 1969).

48

A special note should be taken that the activities of high school studentsdo not always fall within the same category as the conduct of college stu-dents, the former being in a much more adolescent and immature stageof life and less able to screen fact from propaganda.. . While there is a certain aura of sacredness attached to the FirstAmendment, nevertheless these First Amendment rights must be balancedagainst the duty and obligation of the state to educate students in an or-derly and decent manner to protect the rights not of a few but of all ofthe students in the school system. The line of reason must be drawn some-where in this area of ever expanding permissibility. Gross disrespect andcontempt for the officials of an educational institution may be justificationnot only for suspension but also for expulsion of a student.

In another New York case, a federal district court held that astudent was not entitled to a prelimiary injunction against histransfer to another school for having distributed an article con-taining numerous vulgarities.72 The article had been published ina paper on which was forged the official masthead of the schoolnewspaper.

Prior to this incident the student had engaged in several dis-ruptive activities including one in which a fellow student was in-jured. After conferences with school authorities at that time, J.

had voluntarily signed an agreement to obey school rile,: cl.ci toavoid activities "not conducive to a proper scho,1 _JSphere ."

Following the present incident, the student was given a hearingbefore the district superintendent, the outcome being his transferto another school.

DETERMINATION OF PUNISHMENTS

The preceding analysis has focused primarily on the substantivequestion whether school officials have the authority to controlspecified elements of student conduct. The penalty invokeu againstthe student usually has been mentioned because an important re-lation exists between the punishment provided for violating therule and the rule's legality. Most lawsuits in this area test theauthority of school officials not only 4,0 establish a rule but also toimpose a specific penalty on a student ho breaks the rule.

If a rule is found not to be legally permissible under any cir-cumstances, the punishment is irrelevant. On the other hand, ifa penalty is found not to be legally permissible (for example, ex-cessive corporal punishment), that fact can be the basis for a judi-cial ruling on behalf of the student regardless of the rule. In such

72sega11 v. Jacobson, 295 F.Supp. 1121 (D.C.N.Y. 1969).

49

a case, the court can invalidate the "rule as applied" and not ne-cessarily clarify whether the rule itself could stand if accompaniedby a different punishment.

The penalty most frequently challenged in lawsuits in pupilcontrol is exclusion from school, whether it be called a suspensionor an expulsion. It should be noted that a suspension of a stu-dent until he complies with a rule may have the same effect as anexpulsion if he believes the rule to be invalid and refuses to com-ply. Because exclusion from school even for a relatively shortperiod may cause a student to fail and lose a whole year, the courtsclosely examine the grounds on which this particular penalty maybe based. A "substantial burden of proof" is on school officialsfor a decision that may so drastically affect a youth's life.

Differentiation in penalty is perhaps most dramatically illus-trated by cases that involve rules concerning married students.Suspension or expulsion of students for the act of marrying hasvirtually no judicial support. On the other hand, restrictions onextracurricular activities of married students have received com-plete judicial support.

Recently, much attention has been given to the process of de-termining penalties for the violation of rules. Precisely what con-stitutes the "due process" to which a public school student is en-titled before he may be penalized for violating a rule has not beenjudicially clarified. However, the more serious the possible pun-ishment, the more carefully school authorities must proceed.

Clearly, before a student may be excluded for a substantialperiod, he has the right to a hearingprobably an adversary-typehearing in which lie has opportunity. to confront witnesses and torefute evidence introduced against him. An adversary-type hear-ing implies the right to legal counsel. However, in an administra-tive-type hearing where the result would not deprive the studentof a substantial right and where the purpose is to take action "inthe best interests of the student," legal counsel need not be per-mitted.73

In cases concerning pupil control, if a court finds "due process"was not observed by school authorities in determining whether aregulation was violated, or in imposing a punishment for analleged violation, the ruling has little or no bearing on the validityof the rule itself.

73Madera v. Board of Education of City of. New York, 386 F.2d 778 (2 Cir. 1967), cert.denied, 390 U.S. 1028, 88 S.Ct. 1416 (1968).

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CONCLUDING COMMENTS

If there is one thing the field of education law does not need anymore of, it is simplistic conclusions. Thus, the preceding recordis left to speak for itself, for the reader to consider and utilize ashe wishes.

Now, however, the author will offer a few observations of hisown in the hope they may be of interest to some concerned withthe increasingly significant legal issues involved in control of stu-dent activities.

In analyzing the cases reported earlier, the question arises whysome of them even went to court. In the answer to this question,one is led to suspect as a factor a rigid clinging by some schoolofficials to prerogatives of authority more fitted to a military oper-ation than to an educational endeavor. Even in some cases decidedin favor of school boards, one may wonder what were the costsof the cases to the educational processes of the school districts.

Educational literature profusely contends that all matters underthe aegis of the school should be considered important parts ofthe curriculum. If this contention is valid, what, then, is the justi-fication for restricting the extracurricular activities of studentswho have married in conformity with relevant statutes, eventhough the board action is legally permissible?74

When a school board must be forced by a court to open its doorsto a girl who desires more education but who has committed the"offense" of bearing an out-of-wedlock child, whatand whosevalues are applied?"

What is the goal of school authorities win try summarily to ex-clude a boy whe brings on the premises a magazine in which onearticle contains "objectionable" words when those same words ap-pear in a book read in English class and in items in the schoollibrary ?7°

What can be said in support of school authorities who condonea "vulgar" sign on the wall of the athletic coaches' office and seekto exclude a student who puts similar words in a publication?"

How is one to evaluate a statement presented in court by coun-sel for the school board, in defending the banning of a student-

74Supra, notes 57-60.75Supra, note 50.7tSupra, note 69.77Supra, note 70.

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paid advertisement critical of the Vietnam war, that a school news-paper "would be just as valuable an educational tool if it werecompiled and then consigned to the files without publication?"78

How cIt L. student or a citizen have confidence in school officialswho tell a court they must bar all girls' slacks because they can-not be specific about types of slacks, when they have adopted de-tailed statements oescribing the kinds of jewelry and ornamenta-tion that may not be worn in the school?"

What objectivity can be ascribed to a principal who testifies incourt that "whenever i see a long-hair youngster he is usuallyleading a riot, he has gotten through committing a crime, he is adope addict or some such thing?"so

What lesson is learned when the principals of a school system,after hearing of a plan by some students to wear armbands sup-porting a truce in Vietnam, decide to bar this symbol though theyhave permitted the wearing of buttons relating to national poli-tical campaigns and other types of insignia, including the IronCross ?81

A substantial proportion of the cases discussed in this paper in-volve forms of student expression. Educational writers andspeakers, almost as a unified voice, say the prime function of theschool is to develop effective citizens for our democracy. It ittherefore disquieting to examine the kinds and extent of authoritythat some school officials will spend energy and tax money toattempt to justify in court.

Lest the foregoing incorrectly indicate that the writer sees onlythe faults of school authorities, it must be emphasized that a greatnumber of actual and threatened "court cases" are encouraged or

by individuals or groups whose motivations areas worthy of condemnation as are the previously mentioned actionsof certain school personnel. Challenges to authority are not virtu-ous per se. Frivolous challenges are as unlikely to lead to a bet-ter society as is contentment with the status quo.

The last few years, however, have been an era of questioning ofauthority in general. Not surprisingly,, the attitude of resistanceto authority is being focused increasingly on the schools. Afterall, the schools are the arm of government that most directly affects

78Supra, note 67.79Supra, note 22.soSupra, note 26.81Supra, note 63.

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the daily existence of youths. How school personnel react to thechallenge to their authority is therefore important not only for thefunction of the schools but for the development of youths' generalattitudes toward their government.

Misunderstandings about the legal rights of students must becorrected. Too frequently, school officials involved in this issueapproach it from one of two extremes, neither of which bodeswell. One is a lack of awareness of what the courts are sayingthe rig1its of students are in certain types of heretofore unadjudi-cated situations. The other is a reluctance by school authoritiesto take reasonable stands and to gather evidence and muster ap-propriate constitutional arguments to support their needs in oper-ating efficient and effective schools. If school boards and pro-fessional personnel are able to develop sound educational and legalarguments to support their actions in cases of discipline, they neednot fear the courts. If they are unable to do so, they simply shouldnot try to impose their whims, hunches, or tastes on the students.

Most challenges to school authority come from those who holda minority point of view on a particular matterthose who ques-tion the authority of school officials either to speak for the ma-jority in certain matters or to enforce the majority's belief on theminority. Cases that involve freedom of speech or freedom ofappearance clearly evolve from an attempt by a minority to speakor dress in a fashion the majority does not approve. Although the"will of the majority" is a properly revered tenet of Americanpolitical philosophy, the Bill of Rights was designed to remove cer-tain fundamental rights of individuals from the control of themajority at a given time.

The present American preoccupation with "taking the matterto court," rather than to the legislative or executive branch, seemsto indicate that an increasing number of cases dealing with con-trol of student activities are to be expected. The receptiveness ofthe federal courts to suits brought by parents and students underthe Civil Rights Act of 1871 is a relatively new factor contribut-ing to an upsurge in published judicial opinions in the area.(Single-judge federal court decisions are generally published, un-like most decisions by state-level trial courts.) Hopefully, better-selected and better-prepared cases in the future will more clearlydefine the blurred border between the rights of parents and pupilsand the powers and duties of school authorities.

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t.

It would be naively idealistic to contend that the proclivities ofindividual judges are not discernible in decisions on cases con-cerning control of student activities. Indeed, a certain amount ofsubjectivity among judges is almost inevitable in an area as sen-sitive as this. Yet the courts actually disagree very little on fun-damentals. Differing results come primarily from differing pat-terns of facts.

Legally, who wins the case is not nearly as crucial as why thedecision was made. Educationally, who wins the case is not nearlyas crucial as why the discipline situation could not have been re-solved short of recourse to the public, adversary forum of thecourt.

54